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Squire Patton Boggs’ Legal Intern Amber Bouie addresses new legislation impacting Texas employers.
COVID-19 vaccinations have been the subject of workplace chatter since the vaccines became widely available in late 2020. At first, some states barred government employers from requiring employees receive vaccinations as a condition of continued employment, leaving private sector policies up to the individual employers. This level of discretion is now evolving.
Late last year, the Texas legislature passed, and Texas Governor Greg Abbott signed into law, Senate Bill 7 (“SB 7”), which effectively implements a ban on COVID-19 vaccine mandates in private workplaces. The law, which became effective as of February 6, 2024 and is codified at Chapter 81D of the Texas Health and Safety Code, prohibits private employers in Texas from adopting or enforcing certain COVID-19 vaccine mandates and authorizes an administrative penalty.
There are two important provisions in the new law:
- “An employer may not adopt or enforce a mandate requiring an employee, contractor, applicant for employment, or applicant for a contract position to be vaccinated against COVID-19 as a condition of employment or a contract position.” Texas Health and Safety Code, Chapter 81D, Sec 81D.002. Employers who violate the law may be required to pay a penalty of $50,000 to the state, unless the employer takes steps to mitigate the negative action that was taken.[1] Id. at Sec. 81D.006. This might involve rehiring a dismissed employee or hiring an applicant who previously applied.
- The law also prohibits “adverse action” by employers. Adverse action is described as “an action taken by an employer that a reasonable person would consider was for the purpose of punishing, alienating, or otherwise adversely affecting an employee, contractor, applicant for employment, or applicant for a contract position.” Id. at Sec. 81D.001(1). Employers should take reasonable precautions to avoid taking adverse actions against workers, such as termination or differential treatment, based on vaccination status.
Employers who are Health Care Facilities, Health Care Providers and Physicians (as each are defined in the law at Sec. 81D.0035) are subject to a limited exception regarding “adverse actions.” “A health care facility, health care provider, or physician may establish and enforce a reasonable policy that includes requiring the use of protective medical equipment by an individual who is an employee or contractor of the facility, provider, or physician and who is not vaccinated against COVID-19, based on the level of risk the individual presents to patients from the individual’s routine and direct exposure to patients.” Id at Sec. 81D.0035(b).
On top of the $50,000 penalty referenced above, the Texas Workforce Commission – the state administrative agency that oversees and enforces workplace laws in Texas – may request that the Texas Attorney General bring an action for injunctive relief against an employer that violates the law to prevent further violations by the employer. Id. at Sec. 81D.005.
All Texas-based companies and those non-Texas employers with employees or contractors in Texas should promptly review and adjust any existing vaccine policies to align with the new law outlawing COVID-19 vaccine mandates. Contact legal counsel promptly to ensure that your company is fully compliant with the recent state law change. This proactive step will help safeguard your business and mitigate any potential risks associated with non-compliance.
[1] Texas Workplace Commission, Covid-19 Vaccine Mandate, www.twc.texas.gov, Covid-19 Vaccine Mandate – Texas Workforce Commission (last visited Mar. 27, 2024).
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