When it comes to employment law changes, alas, dear HR professionals, there’s no rest for the weary. We recently brought employment law attorney Amy Beckstead of Beckstead Terry Ditto PLLC and dozens of Austin-area HR and hiring managers together again for our annual update on employment law changes. It was great seeing so many smiling faces in one place once more, even as the topics we covered included serious—and some downright frustrating—adjustments.
Beckstead drew attention to the following state and federal employment law changes that could affect your workforce and hiring efforts. It’s not an exhaustive list, changes happen frequently, and no two employers are affected alike, so always consult an employment attorney directly to address your specific concerns.
Texas Expanded Employer Liability for Sexual Harassment
Texas legislators honed in on sexual harassment in the workplace this past year with the new SB45 law under the Texas Labor Code, which went into effect on September 1, 2021.
“It changes the definition of ‘employer’ significantly,” warns Beckstead. “Employer” in this specific context is now any person or entity who employs “one or more” employees, instead of businesses that employ fifteen or more employees, the previous standard. It also extends liability to anyone who acts ‘directly in the interest of an employer in relation to an employee,’” which can mean individual business owners, managers, supervisors, HR professionals, and others.
It is important to keep in mind that these expanded liabilities and definitions still only apply to sexual harassment and not harassment based on a protected class including race or disability.
Another key part of the new law involves timing. The employer must take “immediate” action when notified of an event—a switch from “prompt” action as was stated before the change. Plus, the deadline to file a claim with the Texas Workforce Commission (TWC) has expanded from 180 days to 300 days, giving complainants more time to act.
Beckstead recommends all Texas employers—regardless of size:
- Have a written anti-harassment policy that includes an effective complaint mechanism.
- Ensure employees have multiple ways to bring forth complaints.
- Investigate complaints immediately and use best-in-class interviewing and reporting standards.
Other Texas-Specific Employment Law Changes
Texas Firearm Carry Act: Individuals that are 21 years or older and who can legally possess a firearm can now carry a handgun in public without first obtaining a license. Be sure to investigate and post appropriate signage if your business wants to prevent employees from bringing firearms into the workplace. “And remember, Texas requires employers to allow employees to have firearms in their locked vehicles, even when parked on company property,” Beckstead adds.
Medical Marijuana in Texas: Texas expanded its medical-use/compassionate-use law for marijuana. The maximum THC level of low-THC cannabis has doubled to 1% and the qualifying conditions for marijuana use have expanded to include PTSD and all forms of cancer. There are no protections or restrictions on drug testing in Texas, but you can expect more issues and accommodation requests if you do test for THC, says Beckstead.
Expanded employment protection for Texas workers called to state military duty: Prior Texas law prohibited employers from terminating an employee called to active duty or training with state military forces, but an aggrieved employee had limited remedies, including only being able to file a complaint with the TWC. The law is now amended, expanding available remedies to include a private right of action (no longer just limited to TWC complaints) and the possibility of being rewarded declaratory and equitable relief and monetary damages and costs of suit/attorneys’ fees.
Human trafficking prevention: Texas is requiring the help of hotels, motels, and similar businesses with more than 10-room accommodations to help prevent human trafficking. These businesses must now post certain signage to assist victims of human trafficking. They’re also prohibited from taking adverse employment actions against an employee who made a good faith report of a suspected act of human trafficking and must also provide a human trafficking and awareness program within 90 days of hiring and annually thereafter.
COVID-19-Related Laws
The Pandemic Liability Protection Act specifically addresses the potential liability of various individuals related to “pandemic disease.” Beckstead says this law creates additional procedural hurdles and requirements of proof for a plaintiff to assert injury/damages due to exposure to COVID-19, including in the workplace.
Additionally, Governor Greg Abbott’s October 11, 2021, executive order requires that any entity that imposes a vaccine requirement accommodate objections “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
“If it seems ‘any reason of personal conscience’ is blatantly vague, it is,” says Beckstead. In December, TWC clarified that while employers may require their employees to receive a vaccine, they must notify employees of these broad exemptions and process exemptions in good faith.
And speaking of federal laws, OSHA announced it would be issuing revised rules since its broad vaccine mandate was struck down, but it hasn’t yet. Significant litigation has ensued regarding both the healthcare worker vaccine mandate and mandates related to federal contractors. Companies in these areas need to closely follow litigation in these areas to keep ahead of what is/is not required.
Is that all? Not by a long shot. But it’s a start! We’ll be covering additional employment law changes in the coming months including the latest on independent contractors, overtime, and remote workers. As always, thanks to Amy Beckstead for bringing us these updates in an engaging and informative way. Be the first to know about our next Employment Law Update including lunch and HR CE credits by connecting with us on LinkedIn and signing up for our emails at the link at the bottom of this page.
