The New Texas Law on Vaccination Mandates: What Changes Do Employers Need to Make Now?

Quick Hits

• Effective February 6, 2024, Texas law prohibits private employers from adopting or enforcing COVID-19 vaccination mandates.
• There is a carve-out exception for healthcare facilities, healthcare providers, and physicians, allowing for policies that require non-vaccinated employees to use protective medical equipment.
• The enforcing state agency may assess injunctive relief, administrative penalties, and investigative costs for violations of the law.

Senate Bill 7

On November 10, 2023, Texas Governor Greg Abbott signed into law Senate Bill 7, which adds Chapter 81D to the Texas Health and Safety Code. The law prohibits employers from taking adverse action against employees, contractors, or applicants for refusing to be vaccinated against COVID-19. The law defines “adverse action” 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.”

The only carve-outs in the law are for healthcare facilities, healthcare providers, and physicians. According to the law, healthcare facilities, healthcare providers, and physician employers may establish and enforce reasonable policies requiring employees and contractors who are not vaccinated against COVID-19 to use protective medical equipment. The carve-out is available based on the level of risk that the employees or contractors present to patients given their “routine and direct exposure to patients.”

Enforcement and Penalties

The Texas Workforce Commission (TWC) will enforce the law. If the TWC identifies a violation, it may assess injunctive relief, administrative penalties, and investigative costs. Administrative penalties consist of $50,000 for each violation unless the violation is remedied by hiring the applicant or reinstating the employee or contractor with full back pay and benefits.

Key Takeaways

Private employers may want to consider taking steps to comply with the new law. In particular, employers may need to review and update their policies and procedures to comply with the new law. In addition, employers that are healthcare facilities, healthcare providers, or physicians may need to review their policies that require the use of protective medical equipment by certain unvaccinated individuals. These employers may want to assess whether such requirements are reasonable and whether the application of such a policy is individualized based on the individual’s level of risk in terms of potential exposure to patients.

Ogletree Deakins’ Texas offices will continue to monitor developments and will provide updates on the Texas blog as additional information becomes available.

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