On June 7, 2021, Texas Governor Greg Abbott signed into law legislation that prohibits government entities from requiring individuals to provide evidence of COVID-19 vaccination status and strongly discourages private businesses in Texas from requiring what has become known as “COVID-19 vaccine passports” from customers.
In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that “claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).” The Sims decision represents the first time that Texas law has been interpreted to provide workplace protection for LGBTQ workers and it follows on the heels of the June 2020 decision from the Supreme Court of the United States in Bostock v. Clayton County, Georgia, ruling that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity.
On March 10, 2021, the Texas Fourth Court of Appeals affirmed the District Court of Bexar County’s entry of a temporary injunction preventing the City of San Antonio’s sick and safe leave ordinance from taking effect. The appellate court reasoned that San Antonio’s ordinance was preempted by the Texas Minimum Wage Act (TMWA) and was thus unconstitutional.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.
As the COVID-19 vaccine becomes more readily available, employers are considering mandatory vaccination for their employees and in particular, how to respond to employee requests for accommodation, whether on the basis of disability or religion. In Horvath v. City of Leander, the U.S. Court of Appeals for the Fifth Circuit recently considered an employer’s proposed accommodations to a firefighter who refused a mandatory tetanus, diphtheria, and pertussis (TDAP) vaccine for religious reasons, and its analysis now provides timely guidance to employers considering a different type of mandatory vaccine.
On October 6, 2020, the U.S. Centers for Disease Control and Prevention (CDC) once again revised its list of individuals whose risk factors make them more likely to develop severe illness from COVID-19.
On June 26, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-28, immediately scaling back the reopening of Texas due to substantial increases in the number of people testing positive for COVID-19 and the number of hospitalizations.
As Texas has gradually reopened, the number of COVID-19 cases and associated hospitalizations has dramatically increased. In response to local conditions, Bexar County Judge Nelson Wolff recently issued Executive Order NW-10, under which all businesses operating in the county must adopt a health and safety policy that requires both employees and customers to wear face coverings.
On June 17, 2020, Bexar County Judge Nelson Wolff issued Executive Order NW-10, requiring all businesses operating in the county, which includes San Antonio, to implement a health and safety policy to include the mandated use of face coverings by employees and customers when social distancing of at least six feet is not possible.
On May 26, 2020, Governor Greg Abbott issued a proclamation expanding the list of “Covered Services” permitted to reopen in Texas. The proclamation is consistent with Executive Order GA-23, which “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [Centers for Disease Control and Prevention].”
On May 18, 2020, Governor Greg Abbott issued Executive Order GA-23 as part of his three-phase plan to reopen the economy in Texas. The three-phase plan is outlined in a report entitled “Texans Helping Texans: The Governor’s Report to Open Texas.” Executive Order GA-23 is Phase II of the plan and follows Executive Order GA-18 (issued April 27, 2020) and Executive Order GA-21 (issued May 5, 2020). Executive Order GA-23 “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [U.S. Centers for Disease Control and Prevention] CDC.”
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.
Texas has joined the growing number of states that have begun to reopen businesses following weeks of closure due to the COVID-19 pandemic. Governor Greg Abbott rolled out a three-phase plan to reopen the economy in conjunction with a report entitled “Texas Helping Texans: The Governor’s Report to Open Texas.” Additionally, over the last few days, Governor Abbott issued a series of executive orders regarding phase two of the plan.
As Texas begins to reopen, some employers are recalling employees placed on temporary leaves of absence or furloughs due to the COVID-19 pandemic. Invariably, a number of employees will ignore recall attempts or refuse offers to return to work. Depending upon the reason for refusal, these employees may remain eligible for the receipt of unemployment benefits, according to guidance issued by the Texas Workforce Commission (TWC) on April 30, 2020.
The Dallas paid sick leave ordinance was enjoined less than two days before the City of Dallas was set to begin full enforcement.
The City of San Antonio’s Sick and Safe Leave ordinance has been enjoined. The ordinance was originally scheduled to go into effect on August 1, 2019, but on July 24, 2019, a Texas state court delayed implementation until December 1, 2019, pending a ruling on a motion for temporary injunction filed by business groups and the state.
In response to a lawsuit filed by a number of San Antonio business groups, the San Antonio City Council approved certain revisions to the city’s paid sick leave (PSL) ordinance, including renaming it the Sick and Safe Leave (SSL) ordinance. The SSL ordinance is scheduled to become effective on December 1, 2019.
On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
On July 30, 2019, a lawsuit was filed in the U.S. District Court for the Eastern District of Texas seeking to enjoin the City of Dallas’s paid sick leave ordinance, which is set to take effect on August 1, 2019.
On July 24, 2019, a Bexar County district court judge entered an order delaying the implementation of the San Antonio paid sick leave (PSL) ordinance from its current August 1, 2019 date to December 1, 2019. The order represented a compromise between the City of San Antonio and a coalition of San Antonio business groups that filed suit against the city on July 15.
The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship.
Despite broad-based support, the Texas Legislature failed to pass a law preempting the type of paid sick leave ordinances enacted in Austin, San Antonio, and most recently Dallas before the end of its regular session on May 27, 2019. While a Texas court of appeal enjoined implementation of Austin’s paid sick leave ordinance and later ruled it unconstitutional, no litigation has been filed concerning the San Antonio and Dallas ordinances. Accordingly, companies with employees in San Antonio and Dallas may want to review their current policies to ensure compliance with these ordinances, both of which will take effect for most employers on August 1, 2019.
On April 24, 2019, the Dallas City Council passed an ordinance requiring employers to provide paid sick leave beginning as early as August 1, 2019. Dallas is the third Texas city (after Austin and San Antonio) to pass such an ordinance.
The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.
In Delaronde v. Legend Classic Homes, Ltd., No. 17-20027 (January 18, 2018), the Fifth Circuit Court of Appeals affirmed a district court’s denial of an employer’s post-verdict motion for judgment as a matter of law, finding that the jury had been presented with sufficient evidence to conclude that sex discrimination had motivated the transfer of a female sales associate for a Houston-area home builder from a successful community where she had achieved more than $3 million in sales to a very challenging community where the home prices were the lowest of any of the builder’s properties.
The Texas Court of Appeals for the Fourteenth District recently reversed and remanded a judgment in favor of an employer on an employee’s claim of retaliation under the Fair Labor Standards Act (FLSA). The court found there to be a genuine issue of material fact as to whether a change in the employer’s stated overtime policy, which was implemented after the employee filed an overtime lawsuit against the employer and applied only to that specific employee, constituted a materially adverse employment action.
Maintaining a company anti-harassment policy on a bulletin board and website is not enough to avoid liability for sexual discrimination according to a recent decision. On July 20, 2016, the Fifth Circuit Court of Appeals revived a sexual harassment lawsuit filed by a school board’s clerical employee who alleged inappropriate comments and touching from a manager. While the board’s policy manual contained reasonable policy and complaint procedures to prevent harassment, the court found evidence the board made insufficient efforts to train the alleged harasser and other employees about such policies. This case clarifies the scope of an important affirmative defense for employers and demonstrates the importance of clearly explaining policies to employees.
In a case of first impression, the Fifth Circuit Court of Appeals held that Section 504 of the Rehabilitation Act of 1973 permits employment discrimination suits by independent government contractors. In Flynn v. Distinctive Home Care, Inc., the court held that unlike the Americans with Disabilities Act (ADA), the Rehabilitation Act did not require that the defendant be the plaintiff’s “employer.”