This article is written by Matthew S. Veech from BoyarMiller on January 29 2024
Under this new law employers in Texas are restricted from mandating COVID-19 vaccinations as a prerequisite for employment or contractual engagement. This means that both current and prospective employees or contractors cannot be compelled to be vaccinated against COVID-19 and employer cannot take adverse action against unvaccinated employees, contractors, or job applicants. The new law provides that “adverse action” means “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.” This includes, but is not limited to, refusing to hire, termination, demotion, or exclusion from employment opportunities.
The new law does include an exemption granted to healthcare facilities and providers, allowing them to enforce reasonable measures, such as the use of protective medical equipment for unvaccinated individuals based on patient exposure risk.
The new law provides that complaints about violations of the law may be made to the Texas Workforce Commission (“TWC”). The TWC can impose a penalty of $50,000 per violation. However, employers can mitigate these penalties through corrective actions like reinstating employees or contractors with back pay.
Inconsistencies with Federal Guidance
Texas’ new law banning vaccine mandates seems to be inconsistent with guidance from the Equal Employment Opportunity Commission (“EEOC”). The EEOC has issued guidance that private employers can implement COVID vaccination requirements subject to certain limitations under federal law including the Americans with Disabilities Act (“ADA”). It is expected that there will be challenges in court to Texas’ vaccine mandate ban.
Legal Compliance
Employers in Texas should review their current health and safety policies, especially those related to COVID-19, to ensure compliance with this new law and other COVID-19 related rules and best practices. This may necessitate policy revisions or the development of new strategies to maintain workplace safety without mandating vaccines.
When revising policies or developing new ones, it’s important to consider the diverse needs and perspectives of all employees. This includes respecting personal health choices and medical privacy, while also addressing concerns from employees who may feel more vulnerable or anxious about the absence of a vaccine mandate.
Proper documentation of all policy changes and the decision-making processes behind them is essential. This not only helps in maintaining transparency but also serves as a vital record in the event of any legal scrutiny or employee disputes.
Clear communication with employees is crucial. Employers should transparently convey any changes in policies and the rationale behind them. Additionally, training sessions can be useful to educate employees about the new measures, their importance, and how they will be implemented and enforced.
Healthcare employers should seek legal guidance to correctly interpret and implement the law’s exceptions, balancing the need for patient safety with employees’ rights. This may require consultation with legal professionals to ensure that the new policies do not inadvertently infringe upon other employment laws or public health directives.
Final Thoughts
The enactment of SB 7 represents a significant development in Texas employment law, emphasizing the importance of legal compliance and strategic policy development in the evolving landscape of workplace health mandates.
