By Darien Harris, Elizabeth L. Humphrey, and Tim Watson

Seyfarth Synopsis:  Texas has joined a number of other states in prohibiting employers, including healthcare providers, from requiring their workforces to be vaccinated against COVID-19. As a result, employers in Texas must review their vaccination policies and could be faced with tough choices in the event of another significant outbreak of the COVID-19 virus.

On November 10, 2023, Texas Governor Greg Abbott signed into law S.B. 7—legislation prohibiting private employers from requiring their employees or “contractors” to be vaccinated against COVID-19 as a condition of employment. S.B. 7 also prohibits employers from taking “adverse action” against employees / contractors who refuse to be vaccinated for COVID-19. The law is scheduled to become effective on February 7, 2024.

Employees or contractors who believe they have been discriminated against because of their refusal to be vaccinated may file a complaint with the Texas Workforce Commission (“TWC”) which must investigate such complaints. If the TWC finds that an employer violated the law, then the employer must either (1) reinstate the employee / contractor with backpay and benefits or (2) pay a fine of up to $50,000 for each violation. The TWC also may recover its reasonable costs for investigating complaints. The Texas Attorney General may sue and seek an injunction against employers who have violated the law to prevent future violations.

S.B. 7 applies to all private sector employers and does not exclude healthcare providers such as doctors’ offices, clinics, and health facilities. However, such healthcare providers may establish a “reasonable policy” requiring unvaccinated employees to use protective medical equipment if the employee presents a risk to patients.

Although 17 states require employers to grant exemptions to mandatory vaccination policies, only Texas and Florida prohibit mandatory vaccination outright.

Takeaways

Texas employers should review their vaccination policies in light of the new legislation and evaluate how best to address concerns over COVID-19. Because S.B. 7 creates a specific exception for healthcare employers—allowing them to require unvaccinated workers to use protective equipment or be tested—it arguably prohibits non-healthcare employers from requiring their workforces to undergo testing or use protective equipment in lieu of being vaccinated. That is, non-healthcare employers who impose such requirements run the risk that the requirements would be considered “adverse actions” against unvaccinated workers under the law. A non-healthcare employer should still be able to require a worker who actually has COVID-19 to stay home—since the employer in that situation is imposing this requirement not because of the worker’s failure to be vaccinated, but rather because the worker actually has COVID-19. Determining whether its workers have the virus, however, will remain a challenge for non-healthcare employers because they are prohibited from testing unvaccinated workers. It remains to be seen whether S.B. 7 would be allowed to stand if there were another significant COVID-19 outbreak similar to 2020 and the federal government took action to prohibit states from enforcing such legislation. 

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.