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Texas “Anti-Vaccination Passport” Law

Texas “Anti-Vaccination Passport” Law: What Does It Mean For Employers?[1]

On May 7th, 2021, Texas Governor Greg Abbott signed a law banning COVID-19 “vaccine passports” effective immediately. So, what does SB 968 mean for employers? Does SB 968 prevent an employer from requiring employees to show proof of vaccination?

While both the law and its media coverage seems expansive, the short answer is “no”—SB 968 does not address the issue. SB 968 bans government-issued “vaccine passports” (i.e., proof of vaccination) for non-healthcare related purposes. It also bars businesses from requiring customers to show proof of vaccination before allowing them on their premises. Businesses that fail to comply with SB 968 are subject to losing state funding, grants, and any licenses or permits needed to operate within the State. Nonetheless, employers should continue to monitor both the law of Texas and the laws of other states in which they have employees, which may impose other requirements.

The Equal Employment Opportunity Commission’s (EEOC) updated guidance and FAQs advise that federal anti-discrimination laws do not prohibit employers from requiring COVID-19 vaccinations for any employees physically entering the workplace nor do they prohibit offering employees incentives to take the COVID-19 vaccine or educating employees about its benefits. These general rules are, of course, balanced by the American Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. In other words, employers still need to use the “interactive process” if an employee asserts a vaccine-related disability or a firmly held religious belief about not being vaccinated.[2] This process requires that employers confidentially discuss any disability or religious concerns of an employee regarding COVID-19 vaccinations so that reasonable accommodations may be provided and the employee may continue to work.[3] Such reasonable accommodations may include, for example, remote work, frequent workspace cleaning, private workspaces, or separate building entrances that encounter less foot traffic.[4]

Further, if an employee is already vaccinated, that fact does not change the ongoing requirement for an employer to engage in an interactive process with the employee, if needed as to other issues, such as if an employee encounters adverse side effects from the COVID-19 vaccine and needs medical leave. Additionally, employees may also be entitled to take leave under the Family and Medical Leave Act (FMLA) or state and local laws to care for themselves or a covered relative. Lastly, employers are also free to offer accommodations and flexible work arrangements beyond what the law requires, such as through employee assistance programs (EAPs). EAPs are designed to help employees resolve personal or work-based problems that may affect their performance through counseling and webinars ranging on topics related to self-help, self-care, and time management. However, the EEOC cautions employers who voluntarily provide such accommodations and flexibilities that in doing so employers cannot discriminate against employees based on a protected characteristic, such as age, disability, national origin, race, religion or sex.

In conclusion, while SB 968, by its terms, is not applicable to employers, it remains a concern among many businesses and industries, such as the cruise industry, in regard to their customers and patrons. In the meantime, employers should continue to monitor COVID-19 guidance and legislation under both federal and state law to see if they are impacted in any way.

If KRCL can assist you in navigating any of these issues in the employment sector, please do not hesitate to reach out to us.

[1] Assistance for this Post was provided by Yumna Khan, KRCL Summer Law Clerk.

[2] See, e.g., Dillard v. City of Austin, Tex., 837 F.3d 557 (5th Cir. 2016) (interactive process should be an ongoing, reciprocal process, not one that ends with the first attempt at accommodation, but one that continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed); Lovejoy-Wilson v. Noco Motor Fuels, Inc., 242 F. Supp. 2d 236, 244 (W.D.N.Y. 2003) ( “interactive process” is  where employers and employees work together to assess whether an employee's disability [or religious belief] can be reasonably accommodated).

[3] See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002) (employer's showing that requested accommodation conflicts with seniority rules is ordinarily sufficient to show that accommodation is not reasonable unless the employee can present evidence of special circumstances that makes exception reasonable); Clark v. Champion Nat'l Sec., Inc., 952 F.3d 570 (5th Cir. 2020) (employee failed to request reasonable accommodation for an alleged diabetic-induced loss of consciousness that caused him to violate company's alertness policy); Brett Horvath v. City of Leander, Texas, et al., No. 18-51011 (5th Cir. 2020) (employer’s accommodation of a position transfer when employee objected to vaccination was reasonable as it did not violate the employee’s right to freely exercise his religion, but instead offered him a way to freely exercise it.); Garrison v. Dolgencorp, LLC, 939 F.3d 937 (8th Cir. 2019) (test under the ADA is whether an employer was made aware of an employee’s need for reasonable accommodation through explicit or implied actions).

[4]  Lisa Nagele-Piazza, Fully Vaccinated Workers May Need COVID-19-Related Accommodations (June 9, 2021)