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On August 18, 2023, the Fifth Circuit sitting en banc in Hamilton v. Dallas County unwound its long-held limitation that an adverse employment action must be an “ultimate employment decision” to be actionable under Title VII. The majority reasoned that this limitation was incongruent with the broad language of Section 703(a)(1), which states that “[i]t…

Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.

Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.

The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.…

Continue Reading Texas executive order restricts mandatory vaccination policies for employers

The Texas Legislature has been quite busy over the most recent regular and two specially-called legislative sessions. It adjourned its second specially-called legislative session on September 2, 2021. Additional bills may be enacted into law if and when Governor Greg Abbott calls a third special session. So far, Governor Abbott has signed into law several bills that may have flown under the radars of many Texas employers. Here’s a brief recap of several new laws that may impact Texas businesses and their workforce.

Expansive new sexual harassment protections

As we noted in prior posts (July 6, 2021 and September 2, 2021), Texas passed several new laws that increase legal protections against sexual harassment. The laws, which went into effect on September 1, 2021, expand liability for sexual harassment to companies with just one employee and to individual supervisors and coworkers. The legislation also lengthens the deadline from 180 days to 300 days for a claimant to file a charge alleging sexual harassment with the Texas Workforce Commission.

Liability shield for Texas businesses from most COVID-19 claims

As we noted in prior posts (July 15, 2021 and August 19, 2021), Texas – along with 18 other states – passed statutory liability protections for businesses against claims arising from the ongoing COVID-19 pandemic. The Pandemic Liability Protection Act (PLPA), which went into effect on June 14, 2021, grants retroactive liability protection for both small and large businesses for claims commenced on or after March 13, 2020. The PLPA does not provide Texas businesses an absolute immunity shield, and claims can still be brought for a pandemic-related injury or death if the business:

  • Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
  • Knowingly failed or refused to comply with government standards, guidance or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

As written, the PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. …
Continue Reading Overview of several new workplace laws Texas employers should know about following the recent legislative sessions

On July 6, 2021, we released a blog post on Texas’ new sexual harassment laws, which became effective September 1, 2021. These laws expand liability for sexual harassment to companies with at least one employee and to individual supervisors and coworkers. Our July 6 post discusses the details of the new laws; now that…

On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring masks in Dallas County businesses, schools, and county buildings. Judge Jenkins’ order comes on the heels of a Dallas County state court issuing a temporary restraining order of Texas Governor Greg Abbott’s July 29, 2021 order barring mask mandates by local governmental…

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.

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Continue Reading Texas employers now shielded from most COVID-19 liability

The effects of the #MeToo movement for employers continue with Governor Abbott recently signing two new bills into law (effective September 1, 2021) that greatly amplify legal protections against sexual harassment. One bill extends the statute of limitations for sexual harassment claims from 180 days to 300 days. The other opens the door for small employers, and even individual supervisors and coworkers, to be held liable for sexual harassment.  Also, Texas employers must now take “immediate and appropriate corrective action” to avoid liability for sexual harassment. We explain these new laws in more detail below, and discuss steps Texas employers may want to consider before the new laws go into effect.

Statute of limitations lengthened for sexual harassment claims (House Bill 21)

Currently, employees must file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged harassing conduct. House Bill 21, which Governor Abbott signed into law on June 9, 2021, lengthens the statute of limitations for filing sexual harassment claims from 180 days to 300 days from the date of the alleged harassment. The longer limitations period applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The current 180 day statute of limitations remains unchanged for other types of alleged discrimination (e.g., based on race, age, etc.).

Because the statute of limitations under federal law for sexual harassment claims is 300 days, plaintiffs who miss the 180-day deadline under Texas law were typically only able to pursue their sexual harassment claims in federal court (assuming, of course, they initiated legal proceedings within the 300-day federal deadline). Beginning this fall, those plaintiffs will be able to pursue such claims in either federal or state court.  …
Continue Reading Attention Texas employers: Starting September 1, 2021, companies with just one employee—as well as individual supervisors and coworkers—can be liable for sexual harassment

The recent decline in COVID-19 infections has led numerous states to begin contemplating a roll‑back of mask mandates and related COVID-19 restrictions. Most recently, on Tuesday, March 2, 2021, Governor Greg Abbott and Governor Tate Reeves announced the imminent elimination of mask mandates in Texas and Mississippi, respectively. Both Governors also removed all capacity limits for the businesses within their states. However, these changes pose a serious challenge to employers. On the one hand, they shift employee and customer expectations about the types of restrictions that are appropriate. On the other hand, they do nothing to reduce employer risks associated with potential outbreaks in the workplace. As a result, employers will now need to engage in a careful campaign to maintain workplace safety in the face of increased employee and customer resistance to masking and other similar precautions.
Continue Reading Employers face challenges as states lift COVID-19 safety measures

The enforceability of employment non-competes in Texas is governed by the Texas Covenants Not to Compete Act.  If a non-compete covenant is found to be overbroad, “the court shall reform the covenant to the extent necessary to cause” the covenant to be reasonable.  Tex. Bus. & Com. Code § 15.51(c).  The Texas Supreme Court has yet to address whether reformation of an overbroad non-compete restriction is appropriate at the temporary injunction stage or whether reformation is only a final remedy after a trial on the merits.  In a recent published opinion, the Fifth Circuit squarely examined this issue.  Calhoun v. Jack Doheny Companies, Inc., No. 20-20068, — F.3d —, 2020 U.S. App. LEXIS 25001 (5th Cir. Aug. 7, 2020).
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Continue Reading Fifth Circuit says Texas trial court should have considered reforming an overbroad non-compete at the preliminary injunction stage

With the spike in reported COVID-19 cases in Texas, counties have started to re-impose previous safety measures. As a result, many of the requirements of the “Stay Home, Stay Safe” orders from earlier this year have come back into effect for a second time – highlighting the continuing challenge of COVID-19 workplace compliance.

On the morning of June 19, 2020, Dallas County Judge Clay Jenkins issued a Supplemental Order on Continuing Requirements, which went into effect that night at 11:59 p.m. The order requires all commercial businesses that provide goods or services directly to the public to require all of their employees and visitors to wear a face covering. The face covering requirement is part of a health and safety policy that each business operating in the county must now develop and implement. The order also states that each business’s health and safety policy may also include other mitigating measures such as temperature checks and health screenings. Businesses operating in Dallas must post their health and safety policies in a location sufficient to provide notice to employees and visitors of its requirements. Businesses that fail to comply with the order face a fine of up to $500 per violation.…

Continue Reading Face covering requirements reappear overnight for many businesses operating in Texas