On June 14, 2021, Governor Abbott signed the Pandemic Liability Protection Act (“PLPA”) into law, effective immediately. The PLPA protects businesses from liability for claims arising from exposure to SARS-CoV-2 (COVID-19)—including claims made by employees—and applies retroactively to all unadjudicated claims commenced on or after March 13, 2020. The act will remain in effect until such time as any disaster declaration relating to the pandemic is terminated.
The PLPA’s protection for businesses is very broad, and the act carves out only two narrow exceptions where a business may be held liable for exposing an individual to COVID-19:
- Exposure resulting from a person’s knowing failure to warn against or remediate a condition (despite the reasonable opportunity and ability to do so) under the person’s control that he or she knew would likely result in the individual’s exposure; or
- Exposure resulting from a person’s refusal to implement or comply with government safety standards intended to prevent exposure to COVID-19 (despite the reasonable opportunity and ability to do so) or flagrant disregard of the same, where the person knew that such refusal or disregard would likely result in the individual’s exposure.
The exposed individual must also provide scientific evidence from an expert proving that the business’s failure is cause-in-fact of the individual contracting the virus. The individual must provide the business with the expert’s report within 120 days from the date the business files an answer in the lawsuit. Failure to do so will result in the claim’s immediate dismissal and an award of attorney’s fees in favor of the business. The business has 21 days (from the later of the date the report is served on the business or the date the business’s answer is filed) to challenge the reliability of a timely-filed expert report. The expert report is a threshold matter used solely to determine the timeliness and admissibility of a claim; it is not admissible in evidence, it cannot be used in any depositions or at trial, and it may not be otherwise referred to during the course of the action.
Employers should review their current COVID-19 workplace practices to implement policies which prevent the spread of COVID-19, and should educate personnel on avoiding falling into one of the exceptions to the PLPA’s liability shield. Kuiper Law Firm, PLLC understands the importance of maintaining a safe workplace and protecting employers from liability for COVID-related claims. If you have questions regarding the PLPA or how it may affect you or your business, or if you need assistance implementing policies designed to protect you from liability for the spread of COVID-19, do not hesitate to contact us.
