New Texas law prohibits COVID-19 vaccine mandates by private employers

Concept of coronavirus or covid-19 vaccine mandate, showing with doctor hands with gloves by placing sign board next to vaccine shots and syringe

Texas Governor Greg Abbott’s latest push against vaccine mandates takes form in a new law now in force in the Lone Star State. Senate Bill 7 prohibits private employers from adopting or enforcing certain COVID-19 vaccine mandates. SB 7 directly conflicts with federal guidance on the issue, which generally supports an employer’s right to implement such mandates.

SB 7 now in effect in Texas

The new law, which went into effect on February 6, amends the Texas Health and Safety Code to prohibit a private employer from enforcing COVID-19 vaccine mandates and authorizes an administrative penalty for violations of the law.

Under this new legislation, employers cannot take an “adverse action” against unvaccinated employees, contractors, or applicants. “Adverse action” is defined by the law 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 Texas Workforce Commission will field complaints about violations of this law, and violations are expected to be costly to the employer. The TWC is empowered to impose a penalty of $50,000 per violation, unless the employer remedies the violation by hiring or reinstating the aggrieved employee or contractor with full back pay and benefits, if applicable. The TWC may also recover investigative costs from the employer, as well as request the Texas attorney general to file suit against the employer.

The new law provides somewhat of an exception for certain healthcare facilities, providers, and physicians, in that these groups can require unvaccinated employees and contractors to wear protective medical equipment. The policy must be “reasonable” and must be “based on the level of risk the individual presents to patients from the individual’s routine and direct exposure to patients.”

New law conflicts with federal guidance

Notably, Senate Bill 7 directly conflicts with federal guidance regarding COVID-19 vaccine mandates in the workplace. According to guidance issued by the Equal Employment Opportunity Commission, private businesses may implement policies requiring workers to be vaccinated against COVID-19. Further, an employer may require documentation or other confirmation that employees are up to date on their vaccinations in accordance with the employer’s policy.

While federal guidance on the issue generally supports an employer’s ability to implement a COVID-19 vaccine mandate for its employees, there are some important exceptions to bear in mind. For example, some employees who refuse the vaccine due to a disability or a sincerely held religious belief may be eligible for reasonable accommodations under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964, respectively, according to the EEOC.

Next steps for employers with Texas operations

In light of SB 7, it is imperative that employers with Texas operations—including healthcare providers who may meet the exception to the prohibition—review their current vaccine policies in order to ensure compliance with the provisions of the new law. McAfee & Taft’s Labor & Employment Group is prepared to assist in that effort and address any future concerns that may arise from the implementation of SB 7.