February 2022 Business Litigation Update

Texas Pandemic Liability Protection Act Helps Employers Avoid COVID Related Lawsuits Brought By Their Employees
In June 2021, Texas Governor Greg Abbot signed the Pandemic Liability Protection Act (“PLPA”) into law, providing COVID-19 liability protections for a variety of organizations in the state, such as businesses, non-profits, health care providers, schools, and religious institutions.  The law became effective in June 2021 but applies retroactively to lawsuits filed on or after March 13, 2020.

The PLPA creates very high hurdles for plaintiffs asserting claims for COVID related injuries.  For example, a plaintiff must demonstrate that the defendant was aware of a condition that was “likely to result in the exposure” to COVID-19 and failed to warn the plaintiff.  Additionally, the plaintiff must also prove that the defendant knowingly did not comply with government standards and policies for COVID safety.

Moreover, a plaintiff must come forward with “reliable scientific evidence” that a defendant’s failure to warn of the condition or failure to comply with government standards was “the cause in fact” of the plaintiff contracting COVID.

Since the law was enacted, at least two U.S. district court judges have already dismissed COVID lawsuits against two well-known meat processing companies:

• Tyson Foods, Inc. – Employees of Tyson Foods claimed that, in ordering the employees to come back to work after Texas and other states issued stay-at-home orders, the company failed to take adequate safety measures – including not issuing personal protective equipment or implementing social distancing guidelines – which caused the employees to get COVID.  In September 2021, the U.S. district court for the Eastern District of Texas dismissed the lawsuit, finding that the employees did not meet any of the PLPA’s requirements.

• Swift Beef Co. – Employees of Swift Beef Co. filed a similar lawsuit, making similar allegations.  In December 2021, the U.S. district court for the Northern District of Texas dismissed the Swift Beef employees’ claims, determining that the employee’s complaint, among other things, did not include any “reliable scientific evidence” that the company’s actions caused them to contract COVID.

While the protections afforded to businesses by the PLPA are significant, companies should nevertheless ensure that they are in full compliance with all relevant government safety protocols, guidelines, and procedures, and that workplace health and safety policies are in place and being followed.  Doing so will help your employees as well as reduce costly workplace litigation down the road.