To print this article, all you need to do is register or log in to Mondaq.com.
Texas “Anti-Vaccination Pass” Act: What Does It Mean for Employers?
May 2021, Texas Governor Greg Abbott signed law banning COVID-19 “vaccine passports” with immediate effect. What does SB 968 mean for employers? Does the SB 968 prevent an employer from requesting proof of vaccination from its employees?
While both the law and its media coverage seem extensive, the short answer is “no” – SB 968 does not address the problem. SB 968 prohibits government-issued “vaccine passports” (ie proof of vaccination) for non-health purposes. It also prevents companies from requiring customers to provide proof of vaccination before letting them on their premises. Businesses that fail to comply with SB 968 will lose government funds, grants, and any licenses or permits required to operate in the state. Nonetheless, employers should continue to oversee both the laws of Texas and the laws of other states in which they employ workers, which may impose other requirements.
The updated guidelines and FAQs from the Equal Employment Opportunity Commission (EEOC) indicate that federal anti-discrimination laws do not prohibit employers from requiring COVID-19 vaccinations for employees who physically enter the workplace, nor do they prohibit employees from being incentivized to ingest Offer the COVID-19 vaccine or educate employees about the 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 must still use the “interactive process” when an employee claims vaccination disability or a strong religious belief not to be vaccinated.2 This process requires employers to address any disabilities or religious concerns an employee may have about Discuss COVID-19 vaccinations in confidence so that reasonable precautions can be taken and the worker able to continue working Reasonable arrangements may include, for example, remote work, frequent cleaning of the workplace, private workplaces, or separate building entrances with less pedestrian traffic
If an employee is already vaccinated, this fact does not change the fact that an employer has to participate in an interactive process with the employee in case this is necessary in relation to other issues, e.g. B. if an employee has adverse side effects of the COVID-19 vaccination and must be given medical leave. In addition, employees may also be eligible for leave under the Family and Medical Leave Act (FMLA) or state and local laws to support themselves or an insured loved one. Finally, employers are also free to offer accommodation and flexible working arrangements that go beyond what is required by law, for example through employee support programs (EAPs). EAPs are designed to help employees resolve personal or work-related problems that may affect their performance through counseling and webinars on topics such as self-help, self-care, and time management. However, the EEOC warns employers who voluntarily offer such arrangements and flexibilities that employers cannot discriminate against employees on the basis of a protected characteristic such as age, disability, national origin, race, religion or gender.
In summary, while SB 968 does not apply to employers under its terms, it remains a concern for many companies and industries, such as the cruise industry, in relation to their customers and patrons. In the meantime, employers should continue to monitor COVID-19 policies and laws under both federal and state law to see if they are in any way affected.
If KRCL can assist you in addressing any of these employment issues, please do not hesitate to contact us.
Footnotes
1 Support for this post was provided by Yumna Khan, KRCL Summer Law Clerk.
2 See e.g. B. Dillard v. City of Austin, Tex., 837 F.3d 557 (5th Cir. 2016) (interactive process should be an ongoing, two-way process that does not end with the first attempt at accommodation, but one that continues as the worker moves on to another Asks for accommodation or if the employer knows the initial accommodation is failing and more accommodation is needed); Lovejoy-Wilson v Noco Motor Fuels, Inc., 242 F. Supp. 2d 236, 244 (WDNY 2003) (“interactive process” in which employers and employees work together to assess whether an employee is disabled [or religious belief] can be reasonably accommodated).
3 See, for example, US Airways, Inc. v Barnett, 535 US 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002) (the employer’s evidence that the requested placement contravenes the seniority rules is usually sufficient to demonstrate that placement is not appropriate, unless the employee can demonstrate special circumstances that make an exception make reasonable); Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570 (5th Cir. 2020) (the employee has failed to obtain reasonable accommodation for a suspected diabetic loss of consciousness that resulted in him violating the Company’s vigilance policy has violated); Brett Horvath v. City of Leander, Texas, et al., No. 18-51011 (Cir. 5, 2020) (The employer’s adaptation to a change of job in the event of an employee’s objection to vaccination was appropriate as it did not give the employee the right to exercise freely violated his religion, but instead gave him the opportunity to practice it freely.); Garrison v. Dolgencorp, LLC, 939 F.3d 937 (8th Cir. 2019) (ADA test is whether an employer has been made aware of the need for reasonable accommodation by an employee through explicit or tacit actions).
4 Lisa Nagele-Piazza, Fully Vaccinated Workers May Need COVID-19 Related Accommodation (June 9, 2021)
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
POPULAR ARTICLES ON: United States Employment and Workers
An introduction to work and employment
Seyfarth Shaw LLP
The past year has uprooted companies and the way we work. With a mass relocation to work from home and many employees taking on contract or gig work, new employment problems
Comments are closed.