Texas recently enacted the Pandemic Liability Protection Act (PLPA) joining a number of other states that have passed statutory liability protections for businesses against claims arising during a pandemic including the ongoing COVID-19 pandemic. The new law, which has been signed into effect by Governor Abbott, grants retroactive liability protections for both small and large businesses. Under the PLPA, businesses of all sizes are protected from nearly all claims of injury or death from exposure to a pandemic disease regardless of whether the person injured was an employee.

The PLPA does not, however, provide Texas businesses an absolute shield from liability. Under limited circumstances a claim may still be brought for a pandemic-related injury or death:

  1. Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
  2. Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.

If a claimant wants to bring a claim under either of the above circumstances, they must serve the business with a report authored by at least one qualified expert that provides a factual and scientific basis for the assertion that the above circumstances are satisfied. The report must be provided within 120 days of the defendant filing an answer. If a sufficient report is not timely served, the claim shall be dismissed and the business shall be awarded its reasonable attorneys’ fees incurred defending the action.

Besides the two circumstances above, the PLPA shields businesses from liability from all claims commenced on or after March 13, 2020, for which a judgment has not already been entered and become final as of June 21, 2021. As written, the PLPA’s liability shield will continue to protect businesses until the current COVID-19 pandemic disaster declaration is terminated.

If you have any questions about this new law, or would like any guidance, assistance or advice regarding your organization’s COVID-19 related policies, practices or procedures, please contact a member of Reed Smith’s Labor and Employment Practice Group.