Dallas, Texas (February 1, 2022) - In a year that seemed to be dominated by COVID-19 and vaccinate mandates, Texas had several legislative and case law developments that impacted employers. Our team briefly summarizes some of the more prominent legal developments of 2021 from the Lone Star State.

Expanded Liability for Sexual Harassment Claims

Under new laws that took effect on September 1, 2021, the Texas legislature significantly expanded sexual harassment protections for employees. The new laws expand the scope of who may be liable for workplace sexual harassment, as well as the deadline for employees to bring sexual harassment claims.

First, Senate Bill 45 extends liability for workplace sexual harassment to all persons or entities who employ one or more employees. Previously, Texas state law aligned with federal Title VII in exempting businesses with 14 or fewer employees from state sexual harassment lawsuits.

Second, the law defined a potentially liable employer to include anyone who "acts directly in the interests of an employer in relation to an employee." This has the potential to expose managers, supervisors, and perhaps even co-workers, independent contractors, vendors, or volunteers to individual liability related to workplace sexual harassment.

Third, the law also requires employers to take "immediate and appropriate" action whenever a sexual harassment claim is made. Although it remains unclear how the courts will interpret this new requirement, it will be critical for Texas employers to have robust manager training and reporting mechanisms so prompt corrective action can be taken when appropriate.

Finally, House Bill 21 increases the statute of limitations for sexual harassment claims under state law from 180 days to 300 days from the date of the alleged sexual harassment.

Notably, these changes only apply to claims of sexual harassment and do not apply to other forms of discrimination, such as harassment based on race, color, disability, national origin, or religion.

Paid Sick Leave Still Not Required for Private Employers

Despite numerous legislative attempts on the state level, private employers in Texas are still not required to provide employees with paid sick leave under state law. Local ordinances also did not fare well in the courts. Legal challenges filed against local ordinances in Austin, San Antonio, and Dallas successfully argued that the ordinances were unconstitutional because they violated the Texas Minimum Wage Act.

Medical Marijuana Use Expansion

Although the legalization of recreational marijuana use failed to pass in the 87th Texas Legislative Session, Governor Abbott signed HB 1535 into law, which expands the state's medical-use or compassionate-use law. The new law, which became effective on September 1, 2021, made the following changes:

  • Increased the maximum THC level of low-THC cannabis from .5% to 1% by weight.
  • Expanded qualifying conditions to include post-traumatic stress disorder and all forms of cancer (not just terminal cancer as previously allowed).
  • Established compassionate-use institutional review boards to evaluate and approve proposed research programs to study the medical use of low-THC cannabis.

Although the expansion of medical marijuana does not contain any employment protections or restrictions on drug testing, Texas employers should expect a rise in accommodation requests from users of low-THC cannabis for medical purposes.

Expanded Remedies for Employees Called to State Military Duty

Under existing Texas law, employers are prohibited from terminating an employee called to active duty or training with state military forces. Employers also must comply with certain reinstatement rights so there is not a loss of vacation time, seniority, or other benefits. Previously, if an employer failed to comply with these requirements, an aggrieved employee had limited remedies and could only file a complaint with the Texas Workforce Commission. The new law (SB 484), which became effective on September 1, 2021, amends the existing law by expanding the available remedies to include a private right of action where the prevailing service member can be awarded any declaratory or equitable relief, or other appropriate relief to include monetary damage and cost of the suit and attorneys' fees.

New Human Trafficking Prevention Law for Hotel Employers

The 87th Texas Legislature passed several measures that require certain commercial entities to post signage regarding the services and assistance that is available to victims of human trafficking. HB 390, which is applicable to operators of commercial lodging establishments, also contains certain discrimination, retaliation, and training provisions related to employees. HB 390 defines a commercial lodge establishment as a hotel, motel, or similar businesses offering more than 10 rooms to the public for temporary lodging for a fee. The new law prohibits an operator of a commercial lodging establishment from disciplining, retaliating against, or otherwise discriminating against an employee for making a good faith report of a suspected act of human trafficking.

The law also requires commercial lodging establishments to post appropriate signage and requires all employees to complete an annual human trafficking and awareness program in accordance with standards set by the Texas Attorney General. New employees must complete this training within 90 days of hire. Approved signage, training videos, and employee certifications are available here.

"Constitutional Carry"

Under the Firearm Carry Act of 2021, Texans who are 21 or more years old are now authorized to legally carry a handgun without a license-to-carry permit, provided they are not otherwise prohibited from possessing a firearm by state or federal law. The new law became effective September 1, 2021.

The new law does not prevent or otherwise limit the right of public or private employers to prohibit employees from carrying firearms on their premises and makes it a Class C felony if they do so when they have oral or written notice that entry with a firearm is prohibited. Property owners must comply with certain statutory signage requirements if they wish to prohibit concealed carry and open carry.

The new law also imposes some restrictions on the right to carry a firearm, such as making it an offense for an individual to possess a firearm or other prohibited weapon on certain premises, including, without limitation, businesses that derive at least 51% of their business from alcohol sales; a high school, collegiate, or professional sporting event or interscholastic event (unless weapons involved such as a shooting competition); a correctional facility; a civil commitment facility; a state hospital or nursing home or on the premises of a mental hospital, unless authorized; or an amusement park.

Fair Labor Standards Act

On January 12, 2021, the U.S. Court of Appeals for the Fifth Circuit established a new framework for collective actions under the Fair Labor Standards Act (FLSA). Departing from the two-step class certification process applied by almost every federal court across the country, the Fifth Circuit held in Swales v. KLLM Transp. Servs., L.L.C., No. 19-60847 (5th Cir. 2021), that "a district court must rigorously scrutinize the realm of 'similarly situated' workers—and must do so from the outset of the case."

The Fifth Circuit held that courts should identify at the outset of the case what facts and legal considerations will be material in determining whether a group of employees is "similarly situated." This includes determining what may appear to be a question on the merits of the case, but is actually a threshold issue, such as whether the putative class members are subject to a valid arbitration agreement or, as was the case in Swales, whether the putative class members were independent contractors or employees.

After making this determination, the court may authorize preliminary discovery necessary to answer any threshold questions. And, only at that point, after a rigorous examination of the putative class, may the court issue notice to potential opt-in plaintiffs.

The Swales decision is only binding on district courts in Texas, Mississippi, and Louisiana. But for employers in these states, the opinion will provide greater certainty early in the case about the extent of a potential class. Although employers will likely bear increased discovery costs earlier in litigation, they will now be able to work to limit the scope of a collective action much earlier by demonstrating that the potential collective action members are not similarly situated, rather than by moving to decertify a conditionally certified class upon completion of discovery. Learn more about this decision in our January 2021 alert "Fifth Circuit Eliminates 'Conditional Certification' Process in FLSA Cases."

COVID-19 Legislation and Executive Orders


On October 11, 2021, Governor Greg Abbott issued an executive order significantly limiting private employers' ability to require their employees to be vaccinated. The executive order requires any entity that imposes a vaccine requirement to accommodate objections "for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19."

In December, the Texas Workforce Commission clarified that while an employer may nominally require their employees to receive a COVID-19 vaccine, they must notify the employee of these broad exemptions and process those exemptions in good faith. The exceptions created by Governor Abbott's order are broader than that created by Title VII or the ADA, and essentially include any personal objection to a vaccine mandate.

For healthcare workers at facilities receiving federal funding, Governor Abbott's executive order has been pre-empted by the vaccine rule issued by the Occupational Safety and Health Administration. The order would have been pre-empted more broadly for all employers with 100 or more employees, but on January 13, 2022, the U.S. Supreme Court temporarily stayed the OSHA rule for large employers.

In addition, the Texas legislature passed Senate Bill 968 in June of 2021, prohibiting any business operating in Texas from requiring proof of customers' vaccination status or post-infection recovery status.

Pandemic Liability Protection Act

On June 14, 2021, Governor Abbot signed the "Pandemic Liability Protection Act" into law, providing retroactive protection to healthcare providers, first responders, and other businesses from certain forms of civil liability. The law also extends existing legal immunity to physicians, healthcare providers, and first responders "during a man-made disaster, natural disaster, or a healthcare emergency." It also generally excuses such professionals from liability for injuries or death "arising from care, treatment, or failure to provide care or treatment" related to or impacted by the pandemic.

The law creates high thresholds for plaintiffs seeking to assert claims for injuries related to exposure to COVID-19. In order to maintain such a claim, a plaintiff must: show that the defendant knew of and failed to warn the plaintiff of a condition "likely to result in the exposure" to COVID-19; show that the defendant knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols; and provide "reliable scientific evidence" in the form of an expert report that the defendant's failure to warn or failure to comply was the cause in fact of the plaintiff contracting COVID-19. The plaintiff must file this expert report no later than 120 days after the defendant files an answer. If the plaintiff fails to timely produce a sufficient report, the court must dismiss the case with prejudice and award the defendant reasonable costs and attorney's fees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.