Legislative Updates in Texas Employment Law

by Sheila B. Gladstone, Sarah T. Glaser, and Jessica A. Maynard

The 87th Texas Legislature passed a number of bills affecting Texas employers. This article summarizes the most noteworthy new employment laws and outlines key takeaways for Texas employers. Note, all of the bills discussed below went into effect on September 1, 2021. If you do not already have policies in compliance with these new laws, contact Lloyd Gosselink’s Employment Law Practice Group.

Sexual Harassment

The Legislature passed three bills modifying the Texas Labor Code’s provisions on sexual harassment:

House Bill 21 extends the statute of limitations for state law sexual harassment claims to 300 days. Complainants now have 300 days, rather than 180 days after the date of the alleged misconduct, to file a complaint of sexual harassment with the Texas Workforce Commission (TWC). Before filing a lawsuit alleging harassment under federal or state discrimination laws, a complainant must first exhaust administrative remedies by filing a charge of discrimination with either the TWC or the Equal Employment Opportunity Commission (EEOC). H.B. 21 brings the TWC deadline in line with the EEOC’s existing 300-day filing deadline, but only for complaints of sexual harassment. For claims based on any other protected class under the Texas Labor Code (race, color, national origin, gender, age, etc.), the 180-day statute of limitations still applies. Employees who do not timely file an administrative complaint of sexual harassment with the TWC or the EEOC lose their ability to bring a sexual harassment lawsuit.

Senate Bill 45 expands liability for sexual harassment to all Texas employers, no matter the size. Previously, only employers with at least 15 employees were covered under sexual harassment laws. S.B. 45 also creates personal liability for agents and supervisors who do not take immediate and appropriate corrective action if they know or should have known that sexual harassment is occurring in the workplace. Supervisors and other agents of an employer can now be named individually in sexual harassment complaints and held personally liable for damages.

Senate Bill 282 prohibits use of public money to “settle or pay” for sexual harassment claims against members of the executive, legislative or judicial branch. Public employers can still settle sexual harassment claims, but settlements must be structured to clarify that public funds are being paid to settle claims only against the public entity, and not individual officials.

In light of these new sexual harassment laws, Texas employers should take the following steps:

• Update Anti-Harassment Policies. Personnel policies should clearly set forth reporting procedures and designate individual(s) whom employees can contact with complaints.
• Training. Sexual harassment training is recommended for all employees, though we encourage employers to host specific sessions for managers and supervisors focused on the new potential for individual liability, and how to recognize and report sexual harassment and respond to employee complaints.
• Investigations. Employers need to have a plan in place to expeditiously investigate reported harassment, either internally or via a third-party independent investigator. If evidence of harassment or other wrongdoing is found, the employer should take prompt disciplinary action and keep the complainant informed of remedial actions taken.

COVID-19 Exposure and Vaccine Mandates

Senate Bill 6, the Pandemic Liability Protection Act, protects businesses, including employers, from liability for injury or death caused by having exposed any individual (employee or not) to a pandemic disease during a pandemic related emergency. However, S.B. 6 does not provide absolute immunity for employers. Claims can still be brought if the business: (1) knowingly failed to warn of, or to remediate, a condition it knew was likely to result in exposure; or (2) knowingly refused to comply with government standards or guidance intended to lower the likelihood of exposure. S.B 6’s pandemic liability limitations will remain in effect until Governor Abbott terminates the pandemic disaster declaration.

Senate Bill 968 prohibits businesses from requiring customers to show proof of COVID-19 vaccination as a condition of entering or interacting with a business. Notably, S.B. 968 does not prohibit employee vaccine mandates, or limit employers from determining employees’ vaccine status. Governor Abbott’s Executive Orders (EO-39 and EO-40) place some restrictions on an employer’s ability to mandate vaccines amongst employees. For OSHA-covered employers, federal rules may override the Governor’s Orders, depending on the outcome of ongoing litigation.

Texas employers should continue to monitor the COVID-19 requirements and best practices coming from the federal and state authorities, and communicate them to employees. If Texas employers want to mandate vaccinations, make sure to include language that accounts for reasonable medical and religious accommodations and “any other legal basis for accommodation.”

Mandatory Paid Leave

House Bill 1589 provides an additional seven days of paid leave for public employees engaged in military service in response to a federally declared disaster. This leave is in addition to the 15 days of paid leave provided for public employees who must miss work for training or military duty under existing Texas law. While on military leave, an employee may not be subjected to loss of time, efficiency rating, personal time, sick leave, or vacation time.

House Bill 2073 requires paid quarantine leave for peace officers, firefighters, and EMTs of a political subdivision who have to isolate or quarantine as a result of the COVID-19 virus (i.e., a positive test result or exposure to someone who has tested positive).

Senate Bill 1359 mandates that law enforcement agencies adopt a paid mental health leave policy program providing officers paid mental health leave after experiencing a traumatic work event. Under S.B. 1359, employers must:

• Provide clear and objective guidelines for use of the mental health leave;
• Make the leave available without a deduction in compensation;
• State the number of leave days available; and
• Detail the limit of anonymity for a peace officer taking such leave.

Senate Bill 44 grants up to 10 hours of paid leave for State employees per year for volunteering during a state-declared disaster. S.B. 44 requires that the State provide this paid volunteer time without deductions in salary or loss of vacation time. The employee may use this leave only with prior employer approval. To be eligible, employees can volunteer with any volunteer organization included on Texas’ Voluntary Organizations Active in Disaster list.

Medical Low-THC Cannabis and Employer Drug Policies

House Bill 1535 expands the eligibility for medical use of low-THC cannabis to patients with certain medical conditions including all forms of cancer, medical conditions approved for certain research programs, and Post-Traumatic Stress Disorder. H.B. 1535 does not provide for employment protections to applicants or employees who qualify for medical use; however, employers should be prepared for a rise in disability accommodation requests from users of medical low-THC cannabis.

If you receive a request for accommodation, employers should first ask for a copy of the employee’s medical marijuana prescription to confirm authorized medical use under Texas law. If the employee has a valid prescription, the employer should consider whether an accommodation can be provided, such as allowing the prescribed medical THC use, but prohibiting the employee from consuming THC at work or coming to work while under the influence (this would be analogous to workplace restrictions for other prescribed controlled substances and alcohol).

Despite H.B. 1535, marijuana is still illegal federally, even for medical use, and courts around the country are split on whether allowing an employee to violate the federal Controlled Substances Act is a reasonable accommodation under the ADA. The EEOC has not provided guidance on whether employers are obligated to accommodate an employee’s use of an illegal drug that is legal in the state they are in. Also, for employers with federal grants, it’s possible that allowing employee use of marijuana could jeopardize grants, as grant recipients are obligated to follow federal law, including the federal Drug Free Workplace Act, which prohibits marijuana use. As the interaction of federal law and H.B. 1535 is still unclear, we recommend you consult with an employment attorney if faced with a request for an accommodation to use medical low-THC cannabis.

New Open Carry Law and Firearms in the Workplace

House Bill 1927, commonly referred to as the “constitutional” or “permitless” carry law, authorizes law-abiding individuals age 21+ to carry a handgun openly (in a holster) or concealed in non-prohibited places without having to obtain a license to carry. Importantly, H.B. 1927 does not affect an employer’s ability to prohibit employees from carrying on work premises or while on duty. However, remember the parking lot exception, which requires employers to allow employees to keep their legal firearms secured in a personal vehicle in the work-provided parking area.

Lloyd Gosselink’s Employment Law Practice Group: Sheila Gladstone, Sarah Glaser, and Jessica Maynard. If you would like more information, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com, Sarah at 512.322.5881 or sglaser@lglawfirm.com, or Jessica at 512.322.5807 or jmaynard@lglawfirm.com.