On June 14, 2021, Texas Governor Greg Abbott signed the Pandemic Liability Protection Act into law. The law became effective upon his signing. This new law provides COVID-19 liability protections for health care providers, businesses, 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 during a pandemic or disaster related to a pandemic. Some three pages of the 17-page law are dedicated to legislative findings articulating ten detailed reasons why the law is necessary, and explaining the public benefits that flow from it.

As for the provisions addressing liability protections for businesses and other “persons” generally in alleged exposure claims, the law itself creates new exceptionally high thresholds for plaintiffs asserting claims for COVID-19 related injuries. First, in order to have a viable claim for a COVID-19 related injury, a plaintiff first must be able to show that the defendant knew of and failed to warn the plaintiff of a condition that was “likely to result in the exposure” to COVID-19. Additionally, the plaintiff must show that the defendant knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols in place at the time of the exposure to COVID-19.

To show that a defendant knew of and failed to warn the plaintiff of a condition that was “likely to result in the exposure” to COVID-19, the plaintiff must demonstrate that the defendant had control over the condition “likely to result in the exposure” to COVID-19; that the defendant knew that the plaintiff was “more likely than not” to come into contact with that condition; and that the defendant had a reasonable opportunity and ability to remediate the condition or warn the plaintiff of the condition before the plaintiff came into contact with the condition. 

To show that a defendant knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols, the plaintiff must show that the defendant 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 the defendant did not implement or comply with did not conflict with some other government standard that the defendant satisfied.

Merely asserting that a defendant 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, however, is not sufficient to advance a claim. Rather, a plaintiff must also provide “reliable scientific evidence” that shows that the defendant’s failure to warn of the condition “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.”

The “reliable scientific evidence” must come in the form of an expert report that provides both a factual and scientific basis for the assertion that the defendant caused the plaintiff to contract COVID-19. The plaintiff must provide that expert report no later than 120 days after the defendant files an answer (although the parties can extend that deadline by agreement). The defendant in turn then has 21 days after the report is served or the defendant files its answer, whichever is later, to challenge the sufficiency of the expert report. If the court finds the expert report is not sufficient, it may allow 30 days for the plaintiff 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 the defendant reasonable costs and attorney’s fees. The law allows no discretion on this requirement.

The law also specifies that the expert report is exclusively for threshold purposes because it is not admissible evidence and cannot be used in depositions or at trial. The only exception to this rule is if the parties have depositions to determine the sufficiency of the expert report. Plaintiffs are limited to two such depositions.

The new 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. The law 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, the governor extended the state’s COVID-19 Disaster Declaration through the end of June 2021 so we know that, at a minimum, June 30, 2021 is the earliest date this law could currently expire.

Texas employers with pending COVID-related litigation should consult with their employment law counsel to determine whether the new law applies to their litigation and, if so, the best timing and method for asserting this new defense.