The legal status of various vaccine requirements in the workplace is being decided by the courts and is subject to change quickly. Because of ongoing lawsuits, it is difficult to provide a simple "yes or no" answer to this question. If you do not think your employer's policies are legal, you should seek a legal consultation with an attorney.
Read on for information about Texas laws and federal laws regarding COVID-19 vaccines at the workplace.
Governor Abbott has issued several executive orders related to COVID-19 vaccines. The most recent order — Executive Order GA-40 — was issued on October 11th, 2021. This order expands upon previous orders and prohibits any entity in Texas from requiring any individual to get a COVID-19 vaccine if they have an objection:
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.
The order sets fines for violations to be the maximum amount allowed by Section 418.173 of the Government Code: $1,000. The order does not allow confinement in jail as a penalty.
The order does not specify how to report a violation or who is responsible for enforcement. However, the Texas Workforce Commission issued a letter to Texas employers that states that employees can report violations of GA-40 to TWC over the phone or via e-mail. To report a violation of GA-40 to TWC, e-mail firstname.lastname@example.org or call (800) 939-6631.
However, at the federal level, executive orders have been issued requiring COVID-19 vaccinations for federal executive branch workers, federal contractors, and service members. In addition, the Centers for Medicaid and Medicare Services have issued emergency regulations requiring vaccinations for workers in most health care settings that received Medicare or Medicaid reimbursements. These orders have also faced lawsuits against their implementation.
Additionally, the Department of Labor's Occupational Safety and Health Administration (OSHA) issued federal regulations for employers with 100 or more employees to ensure their workplace is vaccinated against COVID-19. The OSHA rule required employees at these workplaces to get a COVID-19 vaccine or wear a face covering at work and submit to weekly COVID-19 testing. This rule was recently blocked by a ruling from the U.S. Supreme Court.
The Equal Employment Opportunity Commission (EEOC) has issued guidance to employers stating they can generally require that their employees provide proof of vaccination if the employees are physically present in the workplace:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.
The EEOC's guidance also states that, in some circumstances, an employer may be required to provide a reasonable accommodation if an employee cannot receive the COVID-19 vaccine due to a sincerely held religious belief or a disability. An employer may not have to provide a reasonable accommodation if the accommodation would place an “undue hardship” on the employer. Section K.2 has several examples of accommodations for employees.
Texas has filed lawsuits against various federal agencies over the Biden administration's COVID-19 vaccine requirements for federal contractors, healthcare workers, employers with more than 100 employees, and members of the National Guard. There are also multiple federal lawsuits filed by other parties that may affect the status of these requirements.
The Texas Workforce Commission's COVID-19 Vaccine Policy Issues page highlights Texas and federal laws and ongoing lawsuits:
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.
On that page, they recommend that employers discuss their COVID-19 vaccination policies with an employment law attorney:
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.
Employers and employees who have questions about the legal status of COVID-19 vaccine requirements should speak with a lawyer who can provide a legal opinion. See the library's Legal Help page. We also have more information about statutes, orders, and guidance on COVID-19 vaccine mandates on the Vaccine Laws page of the COVID-19 and Texas Law guide.