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Friday 3rd September 2021

During its regular and two special sessions, the Texan legislature passed several bills that are or will soon be in force that will affect employers’ workplace policies and procedures. Other special legislative sessions may be held and with them further changes could be in sight.

Expanding the use of medical marijuana

The measures to legalize recreational marijuana failed again in the 2021 legislature in Texas. But in June 2021, Governor Greg Abbott signed a modest extension to the state’s law for medical or compassionate use.

Under previous law, marijuana could only be prescribed for a very limited number of diseases. The new law, HB 1535, not only adds post-traumatic stress disorder but all cancers to the list of qualifying diseases. It also doubles the allowable amount of THC in marijuana products from half a percent to one percent.

While Texas law is still quite restrictive, this extension greatly expands the scope of the medical conditions in question. Texas employers should be prepared for a corresponding surge in housing requests from medical marijuana users.

More extensive safeguards against sexual harassment

Texas lawmakers have expanded the scope of protection for victims of sexual harassment in the workplace in several ways. Most importantly, SB 45 and HB 21 amend the Texas Labor Code to allow even small employers (with fewer than 15 employees) to be sued for sexual harassment, bring sexual harassment lawsuits against individuals, and bring administrative charges filed up to 300 days after the alleged conduct. These are significant changes that are expected to increase the number of sexual harassment lawsuits filed under Texas state law.

New law on wearing without permission requires new signage

As of September 1, 2021, the Firearm Carry Act of 2021 (HB 1927) allows most Texans over the age of 21 to carry pistols in holsters without a permit and without training.

However, this relaxed standard does not limit the employer’s right to prohibit the possession of firearms on its premises, other than that it remains illegal for most employers to prohibit workers from having a firearm they legitimately possess in their personal, locked vehicles to keep in a company parking lot. In addition, possession of firearms on business premises is a criminal offense if the company has verbally or through signs advising the public that firearms are prohibited on the property. Note that this will require new signage, in accordance with changes to Section 30.05 of the Texas Penal Code.

More extensive legal remedies for employees who have been called up for government military service

Texas employers have long been prohibited from firing an employee for being called to active service or training in the state armed forces, and employers must grant reinstatement without loss of seniority, vacation time, or other benefit. Even so, the only option available to employees claiming a violation of the law was to file a complaint with the Texas Workforce Commission. A new amendment to the law (SB 484) gives these employees the right to hire a lawyer and to file a civil suit. It also generally provides them with the same benefits and safeguards available under the Federal Employment and Reemployment Rights Act for Uniformed Services and under the Civil Aid Act for military personnel.

New law to prevent human trafficking for hoteliers

With effect from January 1, 2022, HB 390 prohibits an operator of a commercial accommodation company (defined as a hotel, motel or similar company that offers more than 10 rooms to the public for accommodation) from disciplining, retaliatory or other discrimination against employees because he reported a suspected human trafficking in good faith.

Commercial accommodation establishments must also put up appropriate signage and require all employees to conduct an annual human trafficking and awareness-raising program.

COVID-19 liability protection

SB 6, the Pandemic Liability Protection Act (PLPA), came into effect on June 14, 2021 and protects companies from liability for injury or death caused by a person (whether employee or not) being involved in a pandemic during a pandemic emergency was exposed.

The law does not grant absolute immunity. Claims can still be made in limited circumstances if the company:

Knowingly neglecting to warn or correct a condition that he knew was likely to result in exposure; or

It was deliberately refused to comply with official standards or guidelines intended to reduce the likelihood of exposure.

PLPA liability coverage will remain in effect until the governor ends the current COVID-19 Pandemic Disaster Statement.

Ongoing efforts to limit vaccination requirements

As of September 1, 2021, a Texas business may not require a customer to provide documents certifying the customer’s COVID-19 vaccination as a condition of entry or receipt of services. Companies that fail to comply with this law are not eligible for government grants or contracts. It is important that this law does not prevent employers from requesting proof of vaccination from employees or making vaccination a condition of employment.

Several measures introduced in the ongoing special legislative session suggest extending such restrictions to employers. The fate of these proposals remains uncertain until the end of the session.

Paid sick leave still not required

All bills tabled during the regular legislative period to oblige private employers to grant their employees paid sick leave have failed, and similar bills pending in the second legislative period have yet to gain momentum.

At the local level, Austin, Dallas and San Antonio city ordinances requiring paid sick leave have been thwarted by legal challenges. Therefore, no Texas or local law currently requires Texan employers to provide paid sick leave. Efforts to pass pre-emptive laws in the last legislative periods that would prohibit city and district governments from enacting regulations or ordinances that stipulate employee holidays or benefits beyond those required by federal or state law have stalled for the time being.

Jackson Lewis PC © 2021 National Law Review, Volume XI, number 246