By Sherry Travers, Collin Quigley, and Ross Reyes
Littler — and its more than 1,600 attorneys around the world — are committed to labor and employment law to help employers navigate a complex business world with nuanced legal issues. Here are seven legal trends businesses need to keep an eye on:
Liability protection for COVID-19 claims
In 2021, Texas Governor Greg Abbott signed the Pandemic Liability Protection Act into law which provides retroactive liability protections to both small and large businesses for pandemic-related claims filed on or after March 13, 2020. The law creates exceptionally high thresholds for a plaintiff asserting claims for COVID-19 related injuries.
First, a plaintiff must be able to show that the defendant knew of and failed to warn the plaintiff about a condition that was “likely to result in the exposure” to COVID-19. Second, the plaintiff must show that the defendant knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols in place at the time of their alleged exposure to COVID-19. These are high legal standards requiring a plaintiff to provide reliable scientific evidence from an expert witness that shows that the defendant’s failure to warn of the condition likely to result in the exposure to COVID-19 or failure to comply with government standards, guidance, or protocols regarding COVID-19 caused the individual to contract the disease. This defense has been successfully used by companies around the state to defeat COVID-related claims. Accordingly, Texas employers facing COVID-related litigation should consult with their employment law counsel to determine whether this liability shield law applies to their litigation, and, if so, the best timing and method for asserting this powerful defense.
Remote workers in other states
Due to increased flexibility to work from home during the COVID-19 pandemic, workers are on the move, taking advantage of the opportunity to “wander” and work temporarily from a variety of remote locations. This new normal of employees working from other locations triggers unexpected compliance issues that employers must anticipate and address. The first rule of thumb for wandering workers is “location, location, location.” The law that applies to an employee’s work will most likely be the law of the state where that individual is working — even if the employer is located elsewhere. With limited exceptions of states whose courts have upheld “extraterritorial application” of their laws in other states, most state legislatures and courts recognize that their power to regulate work and employees is limited by their state’s border. What does this mean for you? It means that, if your employees are working in a state other than Texas, you need to determine what compliance obligations you have in that state and not just focus on Texas law. For example, the following are just a few areas to review and consider when evaluating whether to permit employees to remotely work in a state other than Texas:
- state and local taxation
- registration to do business in new states
- paid sick leave obligations
- minimum wage or salary requirements
- meal and rest break requirements
- job posters, pay data reporting, and hiring notifications
- wage-theft notice requirements
- unemployment insurance payment obligations
Reasonable accommodations in the post-pandemic era
As the pandemic begins to subside and employers recall their workforces to the physical office setting, employers are seeing an increase in requests to continue working remotely as an accommodation under the Americans with Disabilities Act or Chapter 21 of the Texas Labor Code. And, in a post-pandemic work environment, employers should anticipate such requests may be more difficult to deny than they were pre-pandemic. This is because employees have been working remotely for more than two years and are now better positioned to demonstrate they have been just as productive—if not more productive — in a remote work setting. In other words, employers were previously able to deny, successfully, remote work as an accommodation by asserting physical attendance in the workplace was an essential function of the employee’s job, but a basis for denial is less likely to carry the day. Employers should, therefore, be prepared to articulate a fact-specific basis as to why remote work is an unreasonable accommodation.
Expanded liability for sexual harassment claims
As of Sept. 1, 2021, employers face expanded liability for sexual harassment claims asserted under Texas law. This expanded liability comes in a surprising move from a historically employer-friendly state and includes a longer statute of limitations for filing sexual harassment claims with the Texas Workforce Commission, a broader definition of who qualifies as an “employer” for liability purposes, and a heightened standard for employers to respond to internal sexual harassment complaints. Employees now have 300 days, rather than 180 days, to file a complaint alleging sexual harassment with the Texas Workforce Commission.
Moreover, smaller employers employing less than 15 employees are no longer immune from liability for sexual harassment claims under Texas law. The new law now applies to any employer that employs at least one employee, i.e., virtually all employers. Even more, as the new law’s definition of “employer” includes any person who “acts directly in the interests of an employer in relation to an employee,” supervisors, managers, human resources professionals, and other employees may be held personally liable for sexual harassment claims. This is a substantial departure from Texas’ former law, which didn’t provide for individual liability. While this change impacts employer’s managerial employees, who may now be held personally liable for sexual harassment, it also impacts employers as well, as it potentially forecloses their ability to remove sexual harassment lawsuits to federal court. Finally, employers are now required to take “immediate and appropriate corrective action” —as opposed to previously being required to take “prompt remedial action” — in response to internal complaints of sexual harassment. Because it’s still unclear what constitutes “immediate and appropriate corrective action,” employers should be swift in their response to internal complaints of sexual harassment. Employers should also have experienced employment counsel review and revise their handbook policies addressing discrimination and harassment to ensure compliance with Texas law.
Abortion in the workplace
The U.S. Supreme Court issued its landmark decision in Dobbs v. Jackson Women’s Health Organization overturning the landmark 1973 case Roe v. Wade, which held the U.S. Constitution protected the right of women to terminate a pregnancy prior to the date of viability. The Supreme Court’s decision on June 24 holds there is no such Constitutional right, and gives the power to regulate the legality of abortions back to the individual states 50 years after Roe. The regulation of abortion at the state level directly impacts the extent to which employers will be able to provide coverage under their health plans, not just for abortion, but for other reproductive health care services. In addition to affecting employee benefits, this decision may also affect other aspects of the workplace, including whether and how employers will communicate with employees about the issue, as well as whether and how employers will implement policies to address abortion-related issues; including communications on internal company communication systems and social media platforms. Given these competing considerations, employers should consult with their employment counsel to navigate their federal and state compliance obligations, with the understanding clear guidance regarding the impact of these laws on employer health plans and employment practices may be years away.
Guns in the workplace
The Firearm Carry Act of 2021, which went into effect on Sept. 1, 2021, allows individuals who are 21 years old or older to carry handguns in public, either in a holster or concealed, without a government permit, provided they are not prohibited from owning a firearm under state or federal law. Most important for employers, the law still permits businesses to prevent members of the public (or employees) from bringing firearms into their businesses so long as the business provides notice (verbal or written) that firearms are not allowed on the premises. However, employers must still, under most circumstances, permit employees to keep firearms in their locked vehicles parked on company property.
Expanded protections for employees called to serve in military
Texas employees called to active duty or training with state military forces have long been protected from termination and possessed certain reinstatement rights after returning from said duty or training. Prior to Sept. 1, 2021, if an employer failed to comply with these requirements, an aggrieved employee could only file a complaint with the Texas Workforce Commission. However, as of Sept. 1, 2021, aggrieved employees now possess a private right of action, which allows them to file a civil lawsuit and recover declaratory or equitable relief, as well as monetary damages, costs, and attorneys’ fees against an employer who violates this law. Because of this new law, employers should exercise extra caution when addressing issues regarding employees called up for military service.