On November 10, 2023, Texas Governor Greg Abbott signed into law Senate Bill 7, which prohibits private employers in Texas from imposing vaccine mandates that require employees and/or contractors to obtain a COVID-19 vaccine. The law, which takes effect on February 7, 2024, is similar, though not identical to Florida laws passed in 2021, and amended in 2023, also limiting employers from requiring vaccination against COVID-19, as a condition of employment.
Texas’ Ban on Employer-Mandated Vaccines
Texas’ new law will prohibit employers from adopting or enforcing a requirement for vaccination against COVID-19 and prohibits employers from taking any “adverse action” against employees, contractors and/or prospective employees and contractors based on their refusal to receive a COVID-19 vaccine. Notably, this law does not provide for any exceptions for healthcare providers, such as doctors’ offices, clinics, or other healthcare facilities. Private healthcare employers may, however, require unvaccinated employees and contractors to wear protective gear, including masks, and to enact “reasonable policies” for employees not vaccinated against COVID-19 “based on the level of risk the individual presents to patients.”
Employees, contractors, and applicants who believe they have been subjected to an adverse employment action because of their refusal to receive a COVID-19 vaccine may file a complaint with the Texas Workforce Commission (“TWC”), which is charged with investigating such complaints. Employers that violate this law may be subject to a fine of up to $50,000 for each violation, as well as potential lawsuit(s) and injunctive relief. Specifically, upon request by the TWC, the Texas Attorney General may sue and seek injunctive relief against employers subject to a complaint. The Texas statute, however, does not provide for a private right of action. It also provides employers with an opportunity to cure violations, prior to imposition of a statutory fine, through means such as reinstatement with back pay or hiring of an aggrieved applicant.
Earlier this year, Governor Abbott signed a similar law, which took effect on September 1, 2023, prohibiting any Texas governmental entity from imposing COVID-19 mandates.
Florida Did It First
The new Texas law is quite similar to laws passed in 2021, and amended in 2023, in Florida. There, private employers, as well as government entities, are prohibited from requiring COVID-19 vaccines. As of June 1, 2023, Florida law bans business and government entities from requiring proof of vaccination as a condition of employment, including for purposes of hiring, contracting, promotion, or continued employment. Florida’s statute further bans employers or government entities from requiring masks or any other face covering, with exceptions for health care providers, as well as entities requiring safety equipment consistent with occupational or laboratory safety standards.
Finally, while not prohibiting employers from requiring vaccination against other diseases, the Florida law states that, with respect to other immunizations, employers must provide exemptions and reasonable accommodations for religious and medical reasons “in accordance with federal law.”
In contrast to the Texas law, the current version of Florida’s statute imposes fines of $5,000 (rather than $50,000) per violation, but, as described in FAQs prepared by the Florida Attorney General, does not provide the express remedy of reinstatement, back pay, or other opportunities to cure.
The Takeaway for Employers
Since it is now against state law, in both Texas and Florida, for any employer, private or public, to institute a mandate requiring its employees to obtain a COVID-19 vaccine, companies with Florida and/or Texas employees are strongly encouraged to review their COVID-19 policies to ensure they are in compliance with state laws covering those employees, and to evaluate best ways to address any concerns in the workplace pertaining to COVID-19.
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