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New Limitation on Liability for Wellness Programs in Texas

Texas Governor Greg Abbott recently signed legislation into law that provides limitation on liability for employers who establish and maintain employee wellness programs. The Texas Legislature saw a need to address concerns that some employers are discouraged from implementing employee wellness programs, which research has shown are a great return on investment, for fear of litigation. The result was H.B. 2390, which prohibits civil liability for the establishment of an employee wellness program unless the program is deemed discriminatory or the lawsuit is based on intentional or reckless conduct.

H.B. 2390 amends the Texas Civil Practice and Remedies Code by adding Chapter 142A, which defines an employee wellness program as a "program established by an employer that provides an incentive to an employee that promotes wellness or a healthy lifestyle." Section 142A.002 provides that "a civil action may not be brought against an employer for establishing, maintaining, or requiring participation in an employee wellness program unless: (1) the program discriminates on the basis of a prior medical condition, gender, age, or income level; or (2) the cause of action is based on intentional or reckless conduct."   Section 142A.002 further provides that "[t]his section does not create a cause of action or expand an existing cause of action."

Employers should be aware that this legislation does not alter the EEOC's position or an employer's liability for claims under the Americans with Disabilities Act if the program discriminates on the basis of a disability.

H.B. 2390 takes effect on September 1, 2015 and applies only to a cause of action that accrues on or after that date.