Several bills that already been introduced that raise serious questions about ERISA preemption. Brief summaries of the bills are as follows. We have highlighted the provisions that, in our view, may have ERISA implications. Disclaimer: we are flagging these bills so that our members who have ERISA plans may study them further and inform us as to their potential ramifications. We will do our best to spot as many of them as we can, but please let us know if we miss something!
- We have high confidence that HB 307 and HB 404 are pre-empted because they mandate that an employer provide a benefit that the employer is not required to provide in other jurisdictions.
- HB 494, which creates an employer-funded wage replacement fund, appears similar to local ordinances in California and elsewhere that require employers to “pay-to-play” in providing minimum benefits. These types of mandates have been challenged, but SCOTUS has yet to consider them.
- HB 1032, SB 304, and SB 308 appear to mandate restrictions on benefits provided by employer-sponsored health plans that differ from other jurisdictions.
HB 307 by Bernal (D-San Antonio): Adds Chapter 83, Labor Code, to require employers to provide paid sick leave annually.
HB 404 by Collier (D-Dallas): Requires private employers to provide paid leave annually. Requires employers with 75 or fewer employees to provide paid leave after the second anniversary date of the date the employer hires its first employee. Provides that paid leave accrues at one hour for each 30 hours worked up to a maximum of 40 hours per calendar year. Entitles an employee to carry over 40 hours of unused leave to the next year, unless the employer pays the employee for the unused leave or offers the full amount of leave expected to accrue in the following year. Requires an employee to work at least 18 hours a week to use paid leave. Prohibits an employer from taking an adverse employment action against an employee who requests or uses paid leave or who files a complaint with the TEC. Imposes an administrative penalty of $500 for a violation involving retaliation against an employee, $100 for other violations. Imposes liability on an employer of employee who prevails in a civil action for lost wages, salary, benefits, or other compensation, as well as equitable relief, including reinstatement or promotion. Allows the court to award reasonable attorney’s fees, expert witness fees, and other costs to the employee.
HB 494 by Meza (D-Irving): Entitles an employee who has worked for an employer for at least one year to up to 30 days of leave to attend to the employee’s own serious health condition or the serious health condition of the employee’s spouse, child, grandchild, sibling, parent, parent-in-law, grandparent, or grandparent-in-law. Also extends to the birth of a child or care or services necessary if the employee or member of the employee’s family are a victim of family violence, sexual assault or abuse, stalking, or trafficking. Does not require leave to be paid but entitles the employee to wage replacement benefits for leave taken. Provides that if the employer offers paid leave, an employee is entitled to the average amount that would have been paid to the employee during the pay period. Does not entitle an employee to accrual of seniority or other employment benefits during the leave period or any right, benefit, or position the employee was not previously entitled to. Creates a wage replacement benefit fund funded by employee contributions of .25% of the employee’s monthly pay. Makes violations of this chapter unlawful employment practices.
HB 1032 by Noble (R-Allen): Adds Subchapter N, Insurance Code, to prohibit a group health benefit plan issuer or a life insurance company from using an individual’s COVID-19 vaccination status to discriminate against the individual in providing coverage. Purports to preempt any other law. Amends Chapter 21, Labor Code, to prohibit an employer from discriminating against a person who has not received a COVID-19 vaccination. Immunizes an employer from suit arising from a failure to mandate a COVID-19 vaccine. Prohibits an elementary or secondary school or institution of higher education from discriminating against a student who has not received a COVID vaccination. Blocks HHSC from adding COVID-19 to the list of mandatory vaccinations.
SB 304 by Hall (R-Edgewood): Prohibits a person from discriminating against or refusing to provide a public accommodation based on the person’s vaccination history or immunity status for a communicable disease. Enforceable by the attorney general in a suit for equitable relief. Prohibits such discrimination by a long-term care facility, health care provider, health care facility. Punishes violations by defunding, disciplinary action, and administrative penalties. Prohibits a health benefit plan from discriminating against an individual based on vaccination status. Prohibits a health benefit plan from using an individual’s vaccination status in rating. Prohibits a health benefit plan from discriminating against a provider based on the vaccination status of the provider’s patients. Prohibits an employer from discriminating against an individual based on vaccination status. Prohibits a licensing agency from discriminating against a licenseholder or applicant based on vaccination status. Prohibits an educational institution, hospital, or health care facility from requiring as a condition of employment to be vaccinated or to participate in vaccine administration. Creates a private right of action for equitable relief, reinstatement, back pay, and interest. Prohibits TXDOT from discriminating against a driver’s license applicant based on vaccination status. Abolishes vaccination requirements for schools and institutions of higher education. Eliminates emergency authorization for a physician to administer a vaccination. Bars disciplinary action against child care providers or foster parents for declining to immunize a child. Bars the state or a local government from requiring vaccines. Bars a health care provider from disclosing a person’s vaccination history. Abolishes all child vaccine requirements.
SB 308 by Hall (R-Edgewood): Prohibits a person from discriminating against or refusing to provide a public accommodation based on the person’s COVID-19 vaccination history or immunity status for a communicable disease. Enforceable by the attorney general in a suit for equitable relief. Prohibits such discrimination by a long-term care facility, health care provider, health care facility. Punishes violations by defunding, disciplinary action, and administrative penalties. Prohibits a health benefit plan from discriminating against an individual based on COVID vaccination status. Prohibits a health benefit plan from using an individual’s vaccination status in rating. Prohibits a health benefit plan from discriminating against a provider based on the COVID vaccination status of the provider’s patients. Prohibits an employer from discriminating against an individual based on COVID vaccination status. Prohibits a licensing agency from discriminating against a licenseholder or applicant based on COVID vaccination status. Prohibits an educational institution, hospital, or health care facility from requiring as a condition of employment to be vaccinated for COVID or to participate in vaccine administration. Creates a private right of action for equitable relief, reinstatement, back pay, and interest. Prohibits TXDOT from discriminating against a driver’s license applicant based on COVID vaccination status. Abolishes vaccination requirements for schools and institutions of higher education. Eliminates emergency authorization for a physician to administer a COVID vaccination. Bars disciplinary action against child care providers or foster parents for declining to immunize a child for COVID. Bars the state or a local government from requiring COVID vaccines. Bars a health care provider from disclosing a person’s COVID vaccination history.
