Vaccine Mandates: Me v We
NEWSLETTER VOLUME 2.1
|January 04, 2024
Vaccine Mandates: Me v We
The Texas legislature recently fired shots by prohibiting employers from requiring employees to be vaccinated.
Fired shots. Want me to tell it again?
No? Fine.
Texas and other states have taken the position that an individual should be able to decide on their own personal medical care and risks with regard to vaccines. This makes sense when those decisions only affect the individual involved.
But with contagious and debilitating diseases, the issue gets complicated. People have strong opinions and different priorities. But it boils down to the question of which is most important, what's good for all of us or what's good for each of us. And the answer to that is rarely easy or simple.
The facts and circumstances matter. How severe is the danger? What is the risk? How big is the infringement on individual rights? Can we balance the interests involved?
Vaccine mandates are particularly complicated because they involve injecting something inside our bodies. This is a big intrusion. Usually, employment law says that if someone doesn't want to do that, they don't have to. But they may not be allowed to work in circumstances where that choice could harm others, particularly people who are vulnerable to harm.
While I understand the attraction of rugged individualism; it doesn't scale. Sometimes we need policies and actions for the collective good. Roads are nice. Electricity too. I really love parks and protected wilderness.
Decisions involving me versus we are always complex with multiple competing interests; there are rarely simple answers.
It seems like employers should also be allowed to weigh in on what is good for their businesses. Employers are generally required to be concerned about the health and safety of their employees and everyone else who comes to do business there. This law seems to disregard that principle.
Seyfarth Synopsis: Texas has joined a number of other states in prohibiting employers, including healthcare providers, from requiring their workforces to be vaccinated against COVID-19. As a result, employers in Texas must review their vaccination policies and could be faced with tough choices in the event of another significant outbreak of the COVID-19 virus.
On November 10, 2023, Texas Governor Greg Abbott signed into law S.B. 7—legislation prohibiting private employers from requiring their employees or “contractors” to be vaccinated against COVID-19 as a condition of employment. S.B. 7 also prohibits employers from taking “adverse action” against employees / contractors who refuse to be vaccinated for COVID-19. The law is scheduled to become effective on February 7, 2024.
Employees or contractors who believe they have been discriminated against because of their refusal to be vaccinated may file a complaint with the Texas Workforce Commission (“TWC”) which must investigate such complaints. If the TWC finds that an employer violated the law, then the employer must either (1) reinstate the employee / contractor with backpay and benefits or (2) pay a fine of up to $50,000 for each violation. The TWC also may recover its reasonable costs for investigating complaints. The Texas Attorney General may sue and seek an injunction against employers who have violated the law to prevent future violations.
S.B. 7 applies to all private sector employers and does not exclude healthcare providers such as doctors’ offices, clinics, and health facilities. However, such healthcare providers may establish a “reasonable policy” requiring unvaccinated employees to use protective medical equipment if the employee presents a risk to patients.
Although 17 states require employers to grant exemptions to mandatory vaccination policies, only Texas and Florida prohibit mandatory vaccination outright.
Takeaways
Texas employers should review their vaccination policies in light of the new legislation and evaluate how best to address concerns over COVID-19. Because S.B. 7 creates a specific exception for healthcare employers—allowing them to require unvaccinated workers to use protective equipment or be tested—it arguably prohibits any such requirements by non-healthcare employers. That is, non-healthcare employers who impose such requirements run the risk that the requirements would be considered “adverse actions” against unvaccinated workers under the law. Similarly, healthcare employers will have to evaluate how best to protect patients through the use of protective medical equipment by unvaccinated employees. It remains to be seen whether S.B. 7 would be allowed to stand if there were another significant COVID-19 outbreak similar to 2020 and the federal government took action to prohibit states from enforcing such legislation.
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