The new Texas ban on vaccine mandates may be just the start.
COVID-19 vaccination mandates have been the subject of litigation and the target of state legislation since the vaccines became readily available. While several states enacted laws that prohibited government employers from requiring workers to be vaccinated against COVID-19, private employers had wide latitude in implementing their own vaccine policies. But that is starting to change.
On February 6, 2024, Texas Senate Bill 7 ("SB 7"), which was signed into effect on November 10, 2023, took effect and drastically impacted private employers in the state. SB 7 prohibits all private employers from requiring workers, whether employees or independent contractors, to be vaccinated against COVID-19. The full text of SB7 is available here.
Private companies that employ workers in Texas should be aware of two critical prohibitions in SB 7.
First, employers may not require COVID-19 vaccination as a condition of employment. While employers may have previously inquired about COVID-19 vaccination status as part of the application process, they must refrain from doing so now to avoid running afoul of SB 7. Otherwise, there is a legitimate risk that an applicant who was rejected for other reasons may claim the employer improperly rejected their application because of their vaccination status.
Second, SB 7 prohibits employers from taking "adverse actions" against workers, and even applicants, for refusing to be vaccinated against COVID-19. "Adverse action" is "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." SB 7 at Sec. 81D.001. While terminating a worker for refusing to be vaccinated against COVID-19 is clearly an adverse action, the broad definition may apply to less severe actions, such as providing favorable scheduling to vaccinated workers and less desirable schedules to unvaccinated workers.
The only exception to the "adverse action" prohibition is for certain healthcare facilities, health care providers, or doctors. Employers that fit within those categories are permitted to "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." SB 7 at new Health & Safety Code Sec. 81D.0035(2)(b).
In most circumstances, employers face a penalty of $50,000 per violation. Additionally, the law allows the Texas Attorney General to bring an action for injunctive relief and seek a court order prohibiting the employer from engaging in specific conduct.
Companies that employ workers in Texas should act immediately and review their current vaccine policies to make sure they comply with SB 7.
Key Takeaways: Given the shifting landscape, variance amongst the states, and potential for additional states to enact their specific legislation to address vaccine mandates, it is imperative for employers to make sure they stay up to date on the current legislation, mainly if they operate in multiple states.
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