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New Texas Law Shields Businesses From COVID-19 Liability

On June 14, 2021, Texas Gov. Greg Abbott signed into law SB 6, a bill granting retroactive civil liability protections for large and small businesses, and a variety of health care providers and first responders subjected to COVID-19-related injury and death lawsuits. SB 6 applies immediately to all legal actions commenced on or after March 13, 2020, for which a judgment has not already become final as of June 14, 2021, continuing until the current pandemic-related disaster declaration is terminated.

We have previously reported about various states that have offered businesses and employers protections for COVID-19-related injury and death lawsuits. Now Texas has extended similarly strong protections to large and small businesses, as well as to the many frontline health care workers who remain instrumental in combating the ongoing COVID-19 pandemic.

Civil Liability Protections for Small and Large Businesses

SB 6 establishes a strong civil liability shield for businesses, regardless of size, against claims of injury or death from exposure to a pandemic disease – whether the person harmed is an employee or a third party on the business’ premises.

While the liability shield is broad, it is not absolute. A claim may still be brought for a pandemic-related injury or death in one of two scenarios:

(a) 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

(b) 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.

Given these exceptions to the civil liability shield, it is crucial for employers of all sizes to ensure they are aware of and in compliance with applicable governmental standards, guidance, and protocols concerning mitigation of exposure to COVID-19.

Civil Liability Protections for Physicians, Health Care Providers, and First Responders

SB 6 also extends particular protections to physicians, health care providers, and first responders defending against an injury or death lawsuit.  These practitioners can now claim immunity from suit if they show: (a) a pandemic disease or disaster declaration was a producing cause of the care, treatment, or failure to provide care or treatment that allegedly caused the injury or death; or (b) the individual who suffered injury or death was diagnosed with or reasonably suspected to be infected with a “pandemic disease” [e.g., COVID-19] at the time of the challenged care, treatment, or failure to provide care or treatment.

Even if this showing is made, however, immunity will not extend to a physician, health care provider, or first responder who is shown to have acted negligently, recklessly, intentionally, willfully, or wantonly to bring about the complained of harm. While the statute provides retroactive protection, there are strict timing requirements imposed. It is key to act promptly if you are currently involved in a suit relating to these issues, or become involved in a suit in the future.

This immunity will remain in effect for the duration of the period that Texas is subject to a “disaster declaration related to a pandemic disease” and for any similar disaster declarations in the future, whether announced by the president of the United States or the governor of Texas. This means SB 6, in addition to protecting frontline health care workers from COVID-19-related injury and death lawsuits, will also operate to provide future protections in the event of future pandemics.

© 2022 Foley & Lardner LLPNational Law Review, Volume XI, Number 193

About this Author

Jessica Glatzer Mason, labor and employment lawyer, Foley Lardner

Jessica Mason is a labor and employment attorney who represents employers and executives in their labor and employment litigation pre-trial, trial and appellate matters around the United States and before administrative agencies, including the Texas Workforce Commission, the Equal Employment Opportunity Commission and the U.S. Department of Labor.

Jessica has particular experience in the area of unfair competition and the protection of trade secrets. She regularly represents clients in the courtroom in matters relating to non-competition agreements and theft of...

Michael Ryan, Employment Lawyer, Foley Gardere Law Firm

Michael Ryan is a labor and employment associate in Foley Gardere’s Houston office. His practice involves counseling employers on a wide-range of employment matters, including hiring and firing decisions, EEO and FLSA matters, enforcement of personnel policies, leave issues, accommodations, drug testing laws, classification of employees and other wage and hour matters, OSHA claims, safety regulations and governmental investigations. Michael represents clients of all sizes, including multinational corporations, local businesses and executives. He has represented clients in various sectors,...