Texas’ COVID-19 Vaccine Mandate Ban Could Expose Private Employers to Penalties and Lawsuits

Private employers of any size in Texas are prohibited from mandating COVID-19 vaccinations as a condition of employment beginning Feb. 6, 2024. This law extends protection to both current and prospective employees and contractors. State and local government employers are already prohibited from imposing or enforcing such mandates.

An employer will not be permitted to take an adverse action against an employee, contractor, or applicant for employment or a contract position for refusing to be vaccinated against COVID-19. Adverse action, as defined by the law, means “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 law will apply only to actions taken by an employer that occur on or after the effective date.

Notably, the law does not carve out exceptions for health care settings, but allows health care facilities, health care providers and physicians to establish and enforce a reasonable policy that includes requiring the use of protective medical equipment by an individual that is not vaccinated against COVID-19. The policy must be reasonable and based on the risk presented to patients. The law provides no additional insight as to what other permissible requirements, if any, health care facilities, health care providers and physicians can enforce.

Once the law takes effect, violations may be reported to the Texas Workforce Commission (TWC). TWC will be able to:

• • Investigate the complaint
  • Ask the attorney general to file a lawsuit against the employer
  • Impose a $50,000 penalty
  • Recover investigation costs from the employer found in violation

Employers can avoid being penalized by:

• • Hiring the applicant for employment or the contract position
  • Reinstating the employee or contractor, providing back pay from the date the employer took the adverse action, and making every reasonable effort to reverse the effects of the adverse action, including reestablishing employee benefits for which the employee or contractor otherwise would have been eligible if the adverse action had not been taken.

In light of the impending effective date, employers in Texas should review their current health and safety policies, especially those related to COVID-19, and onboarding documents and procedures, to ensure compliance with this new law. Employers should document any policy change, the rationale behind them, and the underlying decision-making procedures. Employers should also communicate any changes in policies and the rationale behind them to all current employees and contractors.

Please contact Maritza Sanchez or any member of Phelps’ Labor and Employment team with questions or for advice or guidance.