COVID-19 Vaccination Policy Issues

  1. On October 11, 2021, the Governor of Texas issued an executive order concerning a general prohibition on vaccine mandates for any Texas employees (see GA-40). The order applies to any Texas employer and prohibits "any entity" in Texas from requiring vaccinations of employees or consumers. The relevant text from Section 1 on page 2 of the order states the following: "No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19. I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.".

  2. In keeping with the Governor's order, TWC issued a letter to Texas employers explaining the details of the Governor's ban on vaccine mandates, including a form (see page 3 of that PDF file) that employers can give to employees to fill out and return in order to document a request for an exemption from a vaccination requirement.

  3. Under federal law, the main EEOC guidance on COVID-19 vaccination policies is on their website at the following links:

    1. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K (in particular, questions K.1, K.2, K.5, K.6, and K.11, discussing reasonable accommodation issues).
    2. https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act#q13 (question 13 cites the need for reasonable accommodation of medical and religious exemptions).
  4. Under that guidance, it is permissible to require employees to be vaccinated, as long as the company policy makes reasonable accommodations for individuals with medical limitations or religious objections to vaccinations. Under the EEOC guidelines, an accommodation is reasonable if the employer can provide it without undue hardship to the business. The burden of proving the existence of an undue hardship is on the business.

  5. Even though a company with fewer than 15 employees is not covered by any of the disability or religious discrimination laws that the EEOC or TWC enforces, meaning that those specific laws would not prevent such a small company from requiring all employees to be vaccinated, the Governor's executive order of October 11, 2021 concerning a general prohibition on vaccine mandates for any Texas employees (see GA-40) would apply to any Texas employer (see item 1 above).

  6. The EEOC has some useful commentary on vaccine accommodations and other legal issues in the following document online: https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250.

  7. Documentation showing that a vaccine was administered, such as a CDC card or statement from a medical facility, may be requested from employees (see question K.4 in the first document linked above). Asking an employee what type of vaccine they received would not be recommended - any FDA-approved vaccine should be sufficient.

  8. Accommodations for employees who claim a religious objection to vaccination are covered in question K.12 of the first document linked above.

  9. Those employees who are not vaccinated, or whose vaccination status is unknown, can be subject to special rules and safety measures that are designed to mitigate whatever hazards may exist if they remain unvaccinated, such as facial mask requirements, physical distancing, assignment to separate offices, work-from-home requirements, restrictions on in-person gatherings, and the like. If challenged, the burden of proving a business need for any such special measures would be on the employer.

  10. The latest guidance from OSHA regarding limiting risks from COVID-19 in the workplace is online at https://www.osha.gov/coronavirus/safework. As of December, 2021, that guidance indicates that "OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022."

  11. Face masks may be required of anyone in a private business. Vaccines may not be required of customers, under a new Texas law, or of employees, under the Governor's executive order. However, unvaccinated visitors, or those for whom the vaccination status is unknown or in doubt, may legally be required to adhere to special rules, protocols, and guidelines to uphold health and safety standards, such as requirements to wear facial masks, practice physical distancing, and follow other similar measures. In that regard, see OSHA's guidance online at https://www.osha.gov/coronavirus/safework.

  12. Concerning what might happen with an unemployment claim resulting from a vaccination requirement, TWC will handle such cases according to the specific facts in each individual case. In view of the Governor's executive order, though, it is likely that the majority of such cases would not result in the employee's disqualification from benefits. Whether such a claim would result in a chargeback for an employer would also be decided on a case-by-case basis. In such a case, the employer should be prepared to fully explain the situation and justify whatever action it took.

  13. According to Texas Attorney General Opinion KP-0379 issued on August 11, 2021, Texas state agencies and political subdivisions may not require vaccination or proof of vaccination from any person entering a government facility. Presumably, that would mean that public employers in Texas may not require their employees to be vaccinated as a condition of employment if the employment requires them to enter government facilities.

  14. The vaccination-related orders from the federal government and the Texas governor conflict in many ways, and all such orders are currently in various stages of court appeals. In general, the laws, regulations, and directives dealing with vaccinations are unsettled and subject to change based on public health conditions and other causes that themselves often change rapidly and without warning. An employer would be well-advised to seek qualified employment law counsel in the private sector before taking any action that might adversely affect an employee and possibly cause them to file a claim or a lawsuit or otherwise result in an expense to, or compliance problems for, the company.

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