On June 14, 2021, Pandemic Liability Protection Act was signed into law by Texas Governor Greg Abbott. The Texas Pandemic Liability Protection Act (PLPA) has several provisions, including the COVID-19 liability protection for health care providers, businesses, educational institutions, non-profits, religious institutions and schools that follow certain safety protocols. Texas, with the adoption of this law, joined dozens of other states across the country that have enacted statutory liability protections for businesses and other organizations for claims arising out of or connected with a pandemic.
Provisions for protections against business liability in alleged exposure claims, contain exceptionally high thresholds for plaintiffs asserting claims for COVID-19 related injuries. Under the PLPA, an individual with a COVID-19 related injury must show that either the employer or other entity: a) knew but failed to warn of or remediate a condition that was likely to result in the exposure of an individual to the disease or b) knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to COVID-19.
To demonstrate that a business or organization knew of and failed to warn an individual of a condition that was “likely to result in the exposure” to COVID-19, the claimant must show that the business or organization (a) had control over the condition “likely to result in the exposure” to COVID-19; (b) had a reasonable opportunity and ability to remediate the condition or warn of the condition before the individual came into contact with the condition; and (c) knew that the individual in question was “more likely than not” to come into contact with that condition.
To show that a business knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols, the claimant must show that the business or organization had both the opportunity and ability to comply with those standards; refused to implement or acted with “flagrant disregard” of those standards; and that the standards that were not implemented or complied with did not conflict with some other government standard that the defendant satisfied.
Merely asserting that a business owner knew of and failed to warn of a condition that was “likely to result in the exposure” to COVID-19 and knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols, is not enough to bring a claim. In addition, the claimant must provide “reliable scientific evidence” demonstrating that failure to warn of the condition was “likely to result in the exposure” to COVID-19 or failure to comply with government standards, guidance, or protocols was “the cause in fact of the individual contracting the disease.” Said “reliable scientific evidence” must come in the form of an expert opinion or report that states facts and provides scientific basis for the assertion that the alleged harm actually caused the claimant to contract COVID-19. The expert report must be provided no later than 120 days after the defendant files an answer (although the deadline may be extended by an agreement). The defendant has 21 days after service of the expert report or after or the defendant files its answer (whichever is later) to challenge the sufficiency of the expert report. If the court finds the expert report to be insufficient, it may grant 30 days to cure the deficiency. However, if a sufficient report is not timely produced, the court, on defendant’s motion, must dismiss the case with prejudice and award reasonable costs and attorney’s fees. PLPA allows no discretion on this requirement.
PLPA is an important protection tool in limiting employer liability in COVID- related lawsuits
The law does not create a private cause of action and applies only to claims filed on or after March 13, 2020 for which a final judgment has not yet been issued. PLPA further states that there is currently no certainty regarding how long the pandemic will last and, thus, does not contain a sunset provision. Instead, it provides that the law will remain in effect until a state of disaster no longer exists. On June 7, 2021, Governor Abbott extended the state’s COVID-19 Disaster Declaration through the end of June 2021.
Texas employers with pending COVID-related claims should consult with their employment law counsel to determine whether PLPA or workers’ compensation program can eliminate liability for worker illnesses or for COVID- related conditions.
The intent of this article is to provide general information on employee benefit issues. It should not be construed as legal advice and, as with any interpretation of law. Employers should seek individual legal advice for application of this new law to their company circumstances.
The information in this article is current through June 2021. However, due to the changing nature of the COVID-19 pandemic, the facts stated in this article may change.