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Squire Patton Boggs’ Authorized Intern Amber Bouie addresses new laws impacting Texas employers.
COVID-19 vaccinations have been the topic of office chatter because the vaccines turned extensively out there in late 2020. At first, some states barred authorities employers from requiring workers obtain vaccinations as a situation of continued employment, leaving non-public sector insurance policies as much as the person employers. This degree of discretion is now evolving.
Late final 12 months, the Texas legislature handed, and Texas Governor Greg Abbott signed into legislation, Senate Invoice 7 (“SB 7”), which successfully implements a ban on COVID-19 vaccine mandates in non-public workplaces. The legislation, which turned efficient as of February 6, 2024 and is codified at Chapter 81D of the Texas Well being and Security Code, prohibits non-public employers in Texas from adopting or imposing sure COVID-19 vaccine mandates and authorizes an administrative penalty.
There are two essential provisions within the new legislation:
- “An employer could not undertake or implement a mandate requiring an worker, contractor, applicant for employment, or applicant for a contract place to be vaccinated in opposition to COVID-19 as a situation of employment or a contract place.” Texas Well being and Security Code, Chapter 81D, Sec 81D.002. Employers who violate the legislation could also be required to pay a penalty of $50,000 to the state, except the employer takes steps to mitigate the adverse motion that was taken.[1] Id. at Sec. 81D.006. This would possibly contain rehiring a dismissed worker or hiring an applicant who beforehand utilized.
- The legislation additionally prohibits “adversarial motion” by employers. Adversarial motion is described as “an motion taken by an employer {that a} affordable particular person would take into account was for the aim of punishing, alienating, or in any other case adversely affecting an worker, contractor, applicant for employment, or applicant for a contract place.” Id. at Sec. 81D.001(1). Employers ought to take affordable precautions to keep away from taking adversarial actions in opposition to employees, comparable to termination or differential remedy, based mostly on vaccination standing.
Employers who’re Well being Care Services, Well being Care Suppliers and Physicians (as every are outlined within the legislation at Sec. 81D.0035) are topic to a restricted exception concerning “adversarial actions.” “A well being care facility, well being care supplier, or doctor could set up and implement an inexpensive coverage that features requiring the usage of protecting medical gear by a person who’s an worker or contractor of the ability, supplier, or doctor and who isn’t vaccinated in opposition to COVID-19, based mostly on the extent of threat the person presents to sufferers from the person’s routine and direct publicity to sufferers.” Id at Sec. 81D.0035(b).
On prime of the $50,000 penalty referenced above, the Texas Workforce Fee – the state administrative company that oversees and enforces office legal guidelines in Texas – could request that the Texas Lawyer Normal convey an motion for injunctive reduction in opposition to an employer that violates the legislation to stop additional violations by the employer. Id. at Sec. 81D.005.
All Texas-based firms and people non-Texas employers with workers or contractors in Texas ought to promptly evaluate and modify any current vaccine insurance policies to align with the brand new legislation outlawing COVID-19 vaccine mandates. Contact authorized counsel promptly to make sure that your organization is totally compliant with the latest state legislation change. This proactive step will assist safeguard your online business and mitigate any potential dangers related to non-compliance.
[1] Texas Office Fee, Covid-19 Vaccine Mandate, www.twc.texas.gov, Covid-19 Vaccine Mandate – Texas Workforce Fee (final visited Mar. 27, 2024).
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