Bell Nunnally & Martin LLP RSS Feed Apr 2021 00:00:00 -0800firmwise Nunnally's Heath Cheek and Dominic Cruciani Explore on D CEO Healthcare Texas' Reopening, Mask Mandate Ending and Return-to-Work Issues for Employers<p>Bell Nunnally Partner R. Heath Cheek and Associate Dominic L. Cruciani authored the <i>D CEO Healthcare</i> article &ldquo;Expert: How Employers Can Manage Tensions During the Multi-Phase Reopening.&rdquo; The piece looks at looming issues for employers as Texas&rsquo; return-to-work push begins in earnest following Governor Abbott dropping the mask mandate and declaring the state is &ldquo;100% open.&rdquo; Cheek and Cruciani suggest, &ldquo;A helpful paradigm for managing expectations is to view the reopening of Texas in three phases: (1) allowance; (2) encouragement; and (3) requirement.&rdquo; At present, businesses are allowed to set their own capacity restrictions and more employees are allowed to return to work &ndash; particularly in settings where remote work has been possible. During &ldquo;encouragement,&rdquo; &ldquo;As businesses loosen restrictions and start &lsquo;encouraging&rsquo; employees to return to work, employers may communicate this desire by simply expressing a &lsquo;preference&rsquo; that workers return to offices.&rdquo;&nbsp; And, finally, during &ldquo;requirement,&rdquo; &ldquo;employees will shift from merely encouraging employees to return to office to requiring their return&hellip;.While some business practices may be permanently altered by the pandemic, many businesses will likely return to old patterns to better address longstanding concerns including company culture, employee morale, and client requirements.&rdquo;</p> <p>At each stage, Cheek and Cruciani note that reasonable employee accommodations under the law need to be considered, with emphasis placed on encouraging employers to have open dialogue and engage in the interactive process with concerned employees. They close by adding, &ldquo;With the transition from the &lsquo;encouragement&rsquo; phase to the &lsquo;requirement&rsquo; phase, conflict and friction are sure to develop between employees and employers. Some of these conflicts have already manifested in lawsuits filed by employees who were terminated for refusing to return to work. Businesses may wish to insulate themselves from liability by consulting experts to help navigate these uncertain waters and handle such delicate situations in compliance with applicable laws.&rdquo;</p> <p>To read the full article, please click <a href="">here</a>.</p>News07 Apr 2021 00:00:00 -0800 Trey DeLoach Assists CrossFirst Bank in Providing $20M Debt Financing for Sale of House of Outdoors to Rise Run Capital, Deal Named Finalist for D CEO M&A Awards<p>Bell Nunnally Partner William A. &ldquo;Trey&rdquo; DeLoach, III assisted client CrossFirst Bank in providing $20M in debt financing to Dallas-based private equity firm Rise Run Capital LLC in connection with its late 2020 $20M acquisition of Frisco-based House of Outdoors, the holding company for Googan Baits and Fish Media (&ldquo;Googan&rdquo;), the fastest growing hard and soft fishing bait brand in the country, and Made By Influence (&ldquo;MBI&rdquo;), a leader in branding and merchandise manufacturing support for outdoor and lifestyle focused influencers and media personalities. Andrew Lipman was the lender on the transaction for CrossFirst Bank.</p> <p>The acquisition of House of Outdoors, made possible through financing by CrossFirst Bank, was recently named a finalist for the <i>D CEO </i>&ldquo;Mergers &amp; Acquisitions Awards 2021.&rdquo;</p>News06 Apr 2021 00:00:00 -0800 Nunnally's Saba Syed and Dominic Cruciani on Texas Lawyer Break Down American Rescue Plan, Impact in Texas<p>Bell Nunnally Senior Associate Saba F. Syed and Associate Dominic L. Cruciani authored the <i>Texas Lawyer</i> piece &ldquo;An Unprecedented Year in Review: Unpacking Coronavirus Relief Efforts.&rdquo; The piece breaks down the recently passed American Recovery Act (ARP) federal stimulus package, exploring the relief it provides to businesses and how it squares with Texas&rsquo; progress against the pandemic and pace of reopening. Specifically, the article looks at ARP&rsquo;s impact on issues including: additional PPP funds, small venue relief through the Shuttered Venue Operator Grant (SVOG) program and the state of virus-related sick leave. Syed and Cruciani also look at developing issues specific to Texas, such as the recent dropping of the mask mandate and pending legislation set to provide a partial corporate liability shield.</p> <p>To read the full article, please click <a href="">here</a>.</p>News06 Apr 2021 00:00:00 -0800 Texas Opens for Businesses, Are Businesses Free To Operate As They Wish?<p><strong>Posted: March 29, 2021 at 10:30 AM</strong><br /> <br /> Effective March 10, Governor Abbott reopened Texas for business by removing any government imposed COVID operating limits for businesses or other establishments. The only exceptions are areas with high hospitalizations (seven consecutive days in which the number of COVID hospitalized patients exceeds 15% of the total hospital capacity). Even then there are no state imposed limits, but a county judge can impose restrictions so long as businesses are not required to operate at less than 50% of total occupancy. Executive Order GA-34 (Order 34).</p> <p><b><i>Are There Restrictions for Businesses on the Manner in Which They Re-Open?</i></b> For the most part, Texas businesses are free to do as they wish with respect to operating capacity and requiring their employees and customers follow hygiene or other protective measures. However, the wording of Order 34 makes clear the state gives businesses the responsibility for decisions on mask wearing, social distancing and other hygiene procedures with respect to how businesses protect from COVID risks. Additionally, businesses need to consider the provisions of certain state and federal laws in making those decisions.</p> <p>Bell Nunnally has received a number of questions from employers regarding what they can do in light of the Executive Order GA-34; and the most commonly asked questions and the answers to them are discussed below.</p> <p><strong>1.<span><i> Can employers require their employees return to the workplace</i>?&nbsp;</span></strong></p> <p>Yes. However, if an employee has a medical condition that puts him or her at a higher risk for becoming very sick from COVID, the employee can request a reasonable accommodation under the ADA or its state law equivalent. At that point, the employer and employee will need to engage in an interactive process to determine whether the employee has a disability and whether there is a reasonable accommodation that will allow the employee to perform his or her essential job functions without causing an undue hardship to the employer. An accommodation may be relatively simple if the employee has little contact with customers. On the other hand, if an employee&rsquo;s job requires a lot of customer facing, for example, like a retail sales representative and the employer does not want its sales employees wearing masks, then finding an accommodation could be problematic. Undoubtedly, an at-risk employee who has been allowed to wear a mask prior to Order 34 will argue that wearing a face covering subsequent to the order is a reasonable accommodation.</p> <p><strong>2.<span> <i>Can an employer require its employees to not wear masks or other face coverings? &nbsp;&nbsp;</i></span></strong></p> <p>Yes, but if an employee has a medical condition that puts him at a high risk of becoming very sick from COVID, the employee can request a reasonable accommodation under the ADA or its state law equivalent, as set out in the paragraph above. Additionally, OSHA has a requirement for wearing face coverings when job hazards warrant it; and COVID can be a job hazard. While there is no private cause of action under OSHA, it does provide for fines and penalties for an employer&rsquo;s failure to comply with its requirements to provide a safe workplace. OSHA also protects employees from discrimination for speaking out about unsafe working conditions.</p> <p>On January 29, OSHA posted guidelines for making the workplace safe from COVID. The guidelines are not a standard or a regulation and create no new legal obligations. Rather, they are informational in nature and intended to inform employers on how to safeguard against COVID in the workplace. They can be found at <a href=""></a><span>. </span>Under the new administration, the guidelines, or part of them, might find their way into the OSHA regulations.</p> <p><strong>3.<span> <i>Can an employer drop requirements that its customers wear masks?</i></span></strong></p> <p>Yes, but if an employee who has a medical condition that puts him or her at a higher risk of becoming very sick from COVID will have personal contact with customers, the employee can request an accommodation from the employer which will invoke the process in the answer to questions one and two above. And it can raise the OSHA issues discussed in the answer to question two above.</p> <p><strong>4.<span> <i>Can an employer require its employees to be vaccinated against COVID before they can return to the workplace? </i></span></strong></p> <p>Yes. However, if an employee has a disability that prevents him or her from being vaccinated or if an employee has a religious belief against being vaccinated, then the employer may need to make accommodations for the disability or religious beliefs <a href="">(<span>see Bell Nunnally&rsquo;s client alert of Feb.11, 2021 for a full discussion of these issues</span></a><a id="_anchor_2" href="#_msocom_2" name="_msoanchor_2"></a>).</p> <p><strong>5.<span> <i>Can an employer fire an employee who refuses to (a) return to work, (b) to work without a</i></span> <i><span>Mask, (c) work with customers who are not wearing masks, or (d) be vaccinated?</span></i></strong></p> <p>Yes, if the employee is an at will employee. However, these scenarios raise the ADA, religious belief and OSHA issues discussed in response to Questions one, two, three and four above. Additionally, a terminated employee may be able to collect unemployment compensation. The TWC has stated that due to COVID, a worker may be eligible for unemployment benefits if the employee refuses to return to work because of any of the following reasons:</p> <ul> <li><span>People 65 years or older, and/or&nbsp;people with medical issues, like heart disease, diabetes, cancer or a weakened immune system, or are at a higher risk for getting very sick from COVID‑19. (Source: DSHS website)</span></li> <li><span>Household member at high risk &ndash; People 65 years or older or are at a higher risk of getting very sick from COVID-19 (source DSHS website).</span></li> <li><span>Diagnosed with COVID - the individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.</span></li> <li><span>Family member with COVID - anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.</span></li> <li><span>Quarantined &ndash; individual is currently in 14-day quarantine due to close contact exposure to COVID-19.</span></li> <li><span>Childcare &ndash; Child&rsquo;s school or daycare closed and no reasonable alternatives are available.</span></li> <li><span>Any other situation will be subject to a case-by-case review by the Texas Workforce Commission based on individual circumstances.</span></li> </ul> <p>It is important to note many of these scenarios posed require a careful and thoughtful considerations of all the facts of the particular situation. Rarely are any two situations identical. But these principles should provide some guidance to employers navigating the more consistent and permanent return to work.</p> <p><b><i>Pending Bill Addressing Legal Liability for Businesses. </i></b>Finally, employers need to consider certain provisions of House Bill 3 pending in the Texas legislature (<a href=""><span>see Bell Nunnally client alert of March 5, 2021</span></a><a id="_anchor_4" href="#_msocom_4" name="_msoanchor_4"></a>). If passed, it will significantly limit a plaintiff&rsquo;s ability to sue certain Texas businesses for damages from exposure to COVID-19. Central to the proposed bill is immunity for injury caused by exposing an individual to COVID. One requirement for immunity is that the business must make a reasonable effort to comply with applicable federal, state and local laws, rules, ordinances, declarations and proclamations related to the pandemic disaster. While the law stands a good chance of being passed by the legislature, nobody knows what its final wording and scope will be; but if this requirement remains in it, then employers need to keep this provision in mind when formulating their operating procedures with respect to protecting employees and customers from COVID.</p> <b><i>Final Thoughts On What This Means for Employers. </i></b>The last year has been a difficult one for everyone, including employers, their employees and customers. Now that businesses have the green light to return to full operations, they should concentrate on that return and not incur unnecessary time and expenses over employment issues and disputes regarding what to do to protect their employees and customers from exposure to COVID. Bell Nunnally can help you avoid those distractions. Give us a call.<br /> <div> <div> <div id="_com_4"> <p><br /> For employers having additional questions about this Alert, please feel free to contact Jay Wallace or Brent Hockaday.</p> </div> </div> </div>Newsletters & Client Alerts29 Mar 2021 00:00:00 -0800 Bell Nunnally Attorneys Named to "2021 Texas Rising Stars" List<p>Fifteen Bell Nunnally attorneys have been named to the &ldquo;2021 Texas Rising Stars&rdquo; list published by Super Lawyers, a Thomson Reuters publication and rating service.</p> <p>&ldquo;The work we do for our clients propels our attorneys&rsquo; individual success and the firm&rsquo;s vitality. The results that matter for us are those that matter for our clients. And, when you do good work, people tend to notice. We&rsquo;re extremely proud of this accomplished group of attorneys who have been chosen by their legal peers for recognition,&rdquo; said Christopher B. Trowbridge, managing partner of Bell Nunnally.</p> <p>&ldquo;Texas Rising Stars&rdquo; recognizes lawyers across more than 70 practice areas who are 40 years old or younger or in their first 10 years of practice. Inclusion is based on a highly selective process comprised of detailed and comprehensive peer nominations, evaluation and research &ndash; yielding only those who have both a high degree of peer recognition and professional achievement. Just 2.5 percent of eligible lawyers in Texas are named to the list, set to be featured in the April issue of <i>Texas Monthly</i>.</p> <p>The following Bell Nunnally attorneys have been named to the &ldquo;2021 Texas Rising Stars&rdquo; list:</p> <ul> <li>Katie R. Beaird</li> <li>R. Heath Cheek (Listed since 2014)</li> <li>Andrew Dowdy (Listed since 2019)</li> <li>Perrin B. Fourmy (Listed since 2020)</li> <li>Arianna G. Goodman (Listed 2017-2018)</li> <li>Kristopher D. Hill (Listed since 2014)</li> <li>Brent D. Hockaday (Listed since 2012)</li> <li>Peter J. Kosydar, III</li> <li>Scott R. Larson (Listed since 2020)</li> <li>Emily K. Lehmberg</li> <li>Alexandria M. Risinger (Listed since 2020)</li> <li>Kartik R. Singapura</li> <li>Saba F. Syed (Listed since 2020)</li> <li>Brent A. Turman (Listed since 2017)</li> <li>Ross Angus Williams (Listed since 2014)</li> </ul> <p>Cheek and Williams have also been named to the &ldquo;Top 100 Up and Coming Rising Stars&rdquo; list.</p> <p>2021&rsquo;s edition marks the first appearance for Beaird, Koysdar, Lehmberg and Singapura. In addition, Beaird, Goodman, Lehmberg, Risinger and Syed are cross-listed in the &ldquo;Super Lawyers Women&rsquo;s Edition.&rdquo;</p> <p><br /> <strong><br /> Media Contact:</strong><br /> Brittany Lewis<br /> Marketing Manager<br /><br /> 214-880-6661</p>Press Releases23 Mar 2021 00:00:00 -0800 Fifth Circuit Upends the Wage and Hour Class Certification Process<p style="text-align: left;"><strong>Posted: March 16, 2021 at 3:00 PM</strong><i><br /> </i></p> <p align="center"><i><br /> Did the Court Give Employers a Better Opportunity to Fight Certification Earlier?</i></p> <p>Almost hidden amongst the COVID-dominated headlines of the first quarter in 2021 is one of the most consequential decisions addressing wage and hour disputes in a generation. The Fifth Circuit&mdash;the federal circuit covering disputes in Texas, Louisiana and Mississippi&mdash;rejected the widely accepted and adopted two-step class certification procedure.</p> <p><b><i>Class Action Lawsuits in the Wage and Hour Context &ndash; </i></b>Wage and hour disputes are some of the trickiest and most expensive minefields for businesses to navigate. The size of the case is often the biggest expense variable. The difference between a single or even double-plaintiff action versus a collective action lawsuit (involving potentially thousands of similarly situated plaintiffs) can range between one with relatively modest exposure and one that threatens a business&rsquo; survival. Class certification is the process where courts make this determination. The ultimate consideration includes, among other things, whether the people on whose behalf the lead plaintiff(s) sues perform similar jobs and are compensated similarly as the lead plaintiff(s).</p> <p><b><i>The &ldquo;Two Step&rdquo; &ndash; </i></b>Many courts across the country apply a &ldquo;two step&rdquo; class certification process framed after a decision by a New Jersey district court in 1987, <i>Lusardi v. Xerox Corporation</i>. The first step occurs at the outset of litigation, when the court makes an initial determination whether the potential class members are &ldquo;similarly situated&rdquo; based on little more than pleadings and affidavits. The court then can grant &ldquo;conditional certification,&rdquo; where the employer-defendant sends notice of the lawsuit to all those who are potential class members. These potential class members have the opportunity to &ldquo;opt-in&rdquo; to the lawsuit, after which they become part of a &ldquo;conditionally certified&rdquo; class of plaintiffs.</p> <p>After the notice period and the establishment of the conditionally certified class, the parties embark on discovery at a class scale. This lasts months and, in some cases, takes years to complete. The scale and scope drive up litigation costs significantly. At the conclusion of discovery, the second step occurs, when the plaintiffs move for formal certification of the conditionally certified class or the defendant moves to decertify the conditional class. Regardless of the court&rsquo;s decision, by this time in the litigation, the parties already expended substantial time and financial resources into class discovery. This is, simply put, defending employers already paid to defend against a collective action lawsuit even if the court rejects final class certification.</p> <p><b><i>No More &ldquo;Two Step&rdquo; &ndash; Good for Employers?</i></b> In <i>Swales v. KLLM Transp. Servs., L.L.C.</i>, 985 F.3d 430 (5th Cir. 2021), the Fifth Circuit rejected this process. In <i>Swales</i>, a group of truck drivers sued on behalf of other truck drivers, claiming KLLM misclassified them as independent contractors. The district court granted plaintiffs&rsquo; request for conditional certification applying the two-step approach. On appeal the court declared, <i>&ldquo;the word &lsquo;certification,&rsquo; much less &lsquo;conditional certification,&rsquo; appears nowhere in the FLSA.&rdquo;</i> Grasping onto the statute&rsquo;s text, the court further reasoned only those &ldquo;similarly situated&rdquo; may proceed as a collective action, and it directed the district court to <i>&ldquo;rigorously scrutinize the realm of &lsquo;similarly situated&rsquo; workers . . . from the outset of the case, not after a lenient, step-one &lsquo;conditional certification.&rsquo;&rdquo;</i>&nbsp;</p> <p>The Fifth Circuit directed the district court to determine what material facts and legal considerations are needed to determine whether the employee class is &ldquo;similarly situated&rdquo; at the <b><i>outset of the case</i></b>. The Fifth Circuit effectively made the district court the arbiter of how to manage a collective action case, untethered to the two-step framework of <i>Lusardi</i>. By eliminating the need for conditional certification, the Fifth Circuit armed courts with the ability to drastically alter the scope of discovery in litigating these cases.</p> <p><b><i>What This Means for Employers Fighting Wage and Hour Cases &ndash;</i></b> With this ruling, businesses facing FLSA litigation within the Texas, Louisiana and Mississippi corridor now may choose to resist class certification from the outset instead of waiting until the end of discovery. How far-reaching this decision will be is undetermined. So far at least three employer defendants raised <i>Swales</i> arguments to contest class certification in district courts in Arkansas, Illinois and New Hampshire (outside of the Fifth Circuit where <i>Swales</i> is not binding). While those district courts rejected the defending employer arguments, the <i>Swales</i> decision may carry greater weight should another circuit court adopt the Fifth Circuit&rsquo;s approach or there becomes a noticeable circuit split the Supreme Court must ultimately resolve.</p> <p>For employers having additional questions about this Alert, please feel free to contact Jay Wallace or Brent Hockaday.</p>Newsletters & Client Alerts16 Mar 2021 00:00:00 -0800 Nunnally Trial Team Secures Full Dismissal of $27M Negligence, Premises Liability Suit<p>A Bell Nunnally trial team secured the dismissal of a $27 million suit brought against three Dallas based nightclub investors, including a high-profile former professional athlete. The suit alleged negligence, negligence per se and premises liability related to alleged criminal activity that occurred in a location proximal to a nightclub venue. Bell Nunnally Partner R. Heath Cheek led the firm team and Senior Associate Saba F. Syed and Associate Mason G. Jones both played critical roles. The Bell Nunnally trial team asserted, among other defenses, that established Texas law mandates that individual investors do not owe a legal duty to prevent the criminal acts of third parties and therefore were not individually liable for the alleged torts in question. In late 2020, the claims against one of the investors was voluntarily dismissed with prejudice, and Bell Nunnally obtained two favorable summary judgment orders wherein the other investors were dismissed from the suit. The plaintiffs&rsquo; claims against the individual investors were found to be baseless, with each claim failing as a matter of law.</p>News12 Mar 2021 00:00:00 -0800 Karen Hart and Associate T.J. Hales Explore Cannabis and Cannabis Derived Product Regulation Across U.S. for Legalink<p>Bell Nunnally Partner Karen L. Hart and Associate <span>T.J. Hales authored 10 states in the USA chapter of the Legalink guidebook &ldquo;Cannabis Regulation and Cannabis Derived Products.&rdquo; They break down state law for cannabis and cannabis derived products in California, Colorado, Florida, Georgia, Nebraska, Louisiana, Oregon, Pennsylvania, Texas, and Washington, looking at the following issues:</span></p> <p><span>1)<span> </span></span>What regulatory frameworks are relevant to medical and recreational cannabis and the cultivation, manufacture, distribution etc. of cannabis and cannabinoids in the state?</p> <p><span>2)<span> </span></span>What are the regulatory challenges in allowing the medical and recreational use of cannabis and cannabinoids in the state?</p> <p><span>3)<span> </span></span>What regulatory frameworks are relevant for the cultivation, manufacture and supply of medicinal and recreational cannabis products in the state?</p> <p><span>4)<span> </span></span>Which body is responsible for legislative controls relating to CBD?</p> <p><span>5)<span> </span></span>Is there any possibility to commercialize CBD products without a Novel Food approval or medicinal product marketing authorization in the state?</p> <p><span>6)<span> </span></span>What are the testing specifications in the state for determining the compliance of CBD with regulatory requirements (i.e. what are the testing specifications for determining the purity and/or level of any controlled substances in CBD?) and what documentation or evidence would need to be submitted to the regulatory authority in this regard?</p> <p><span>7)<span> </span></span>Are there any regional limits on the quantity of CBD that can be purchased or imported?</p> <p>Legalink is a non-exclusive, international legal Network of over 70 independent business oriented law firms with members from the majority of the world&rsquo;s main commercial centers. Its membership includes more than 3,500 legal professionals and Bell Nunnally is one of only seven Legalink member firms in the U.S. and the only firm in Texas. The network is now composed of more than 3<span>,500 legal professionals.</span></p> <p>To read the Legalink guide &ldquo;Cannabis Regulation and Cannabis Derived Products,&rdquo; please click <a href="/27F299/assets/files/Documents/Cannabis Regulation and Cannabis Derived Products_2021.pdf">here</a>.</p>News10 Mar 2021 00:00:00 -0800 Nunnally's Alex Risinger Named DAYL's "One to Watch"<p>The Dallas Association of Young Lawyers (DAYL) has named Bell Nunnally Associate Alexandria M. Risinger to its member profile section &ldquo;One to Watch.&rdquo; Risinger, who <a href="">recently joined</a> the firm, is profiled in DAYL&rsquo;s March member newsletter, including this feedback from one of her fellow members of the 2020 DAYL Leadership Class:</p> <p><i>Alex brings tireless energy and determination to every project, while still managing to bring fun and enjoyment to whatever she is working on. In DAYL&rsquo;s first-ever virtual leadership class, Alex demonstrated tremendous leadership by serving on the Steering Committee and going above and beyond in her duties to execute the virtual tenant eviction project. As part of the DAYL leadership class project, Alex has worked closely with non-profit groups assisting tenants, and in her free time, she has scanned countless legal forms relating to tenant evictions so that DAYL could make revisions and update the legal forms for non-profit use. She is always the first one to volunteer for a challenging task and she will execute it perfectly. Alex is an all-star and is an asset to any team she joins.</i></p> <p>To read the full DAYL &ldquo;One to Watch&rdquo; profile for Alex, please click <a href="">here</a>.</p>News08 Mar 2021 00:00:00 -0800 Liability Protection Legislation for Businesses Designated as an "Emergency Item" for Passage This Year<p><strong>Posted: March 5, 2021 at 10:00 AM</strong><br /> <br /> The Texas Legislature recently introduced House Bill 3, providing broad COVID-19 liability protections to Texas businesses. Governor Greg Abbott, <a href="">who announced a rollback of COVID restrictions earlier this week</a>, designated the legislation as an &ldquo;emergency item.&rdquo; Emergency items are provided the highest priority numbers in the legislative session, which means they must be considered before any other pending bills. The emergency designation also signals to the legislature that the governor might call it back to further debate if the legislation fails to pass during the regular session.</p> <p>Similar federal legislation was unsuccessful last fall, but the Texas bill has a strong chance of passage, due to the high priority given to it by the Governor and members of the Texas Legislature.</p> <p>House Bill 3 will significantly limit a plaintiff&rsquo;s ability to sue certain Texas businesses for damages from exposure to COVID-19. Central to the proposed bill is immunity for injury caused by exposing an individual to COVID-19 if:</p> <ol> <li>the business is authorized to do business in Texas;</li> <li>the business knew of the risk of exposure or potential exposure to COVID-19;</li> <li>the business made a reasonable effort to comply with applicable federal, state, and local laws, rules, ordinances, declarations, and proclamations related to the pandemic disaster; and</li> <li>the act or omission giving rise to the exposure or potential exposure to COVID-19 was not willful, reckless, or grossly negligent.</li> </ol> <p>This shield eliminates mere negligence as a potential cause of action.&nbsp;Further, to defeat the immunity shield, the plaintiff will be required to produce evidence showing the business&rsquo; act or omission actually caused the plaintiff to contract the disease and suffer injury or death.&nbsp;For example, the plaintiff will have to provide reliable evidence he or she actually caught COVID-19 at the place of business and not somewhere else.&nbsp;</p> <p>In essence, the use of the terms &ldquo;willful, reckless, or grossly negligent&rdquo; and the requirement for evidence of where the COVID-19 was contracted will make COVID-19 damage cases difficult to prove except for gross violations (<i>e.g.</i>, requiring someone to work near someone that an employer knows has COVID-19 or having no safety protocols at all despite a known risk of exposure).</p> <p>The bill will make this liability protection applicable to any suit filed on or after March 13, 2020, thereby applying to all covered claims for COVID-19 damages currently pending.</p> <p>The entities the proposed legislation will apply to include health care providers, businesses, manufacturers and distributors, non-profits, schools, and religious institutions.</p> <p>If passed, this legislation will provide clear guidance to businesses that have reopened or are planning to reopen during the national pandemic.</p> <p>Bell Nunnally will provide an update regarding the specifics of the bill upon its introduction and any passage. In the meantime, contact your Bell Nunnally attorney to discuss how you can best protect yourself from any suits related to COVID-19 liability.</p>Newsletters & Client Alerts05 Mar 2021 00:00:00 -0800