In the ever-evolving landscape of COVID-19 regulations, Texas has taken a unique stance with Senate Bill 7, which was signed into law by Texas Governor Greg Abbott on November 10, 2023. This legislation specifically addresses COVID-19 vaccination mandates in the private sector, introducing a series of measures aimed at protecting employees’ rights while balancing public health concerns.
Governor Abbott’s Executive Order
On October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the Texas Order) banning COVID-19 vaccine mandates by any entity, including private employers, in Texas. Because the Texas Order was issued while Texas remains in a state of emergency related to the pandemic, the Texas Disaster Act grants it the force and effect of law. The Texas Order states that “no entity in Texas” can compel vaccination for anyone in the state who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” “Personal conscience” is undefined, and this ambiguity in the Texas Order makes it unclear whether an individual can object to the COVID-19 vaccine due to reasons other than religion or those medically related.
Millions of women (and men) across Texas could be impacted by a new law that took effect on September 1 – but not the one you likely have in mind. In an unexpected move from a typically very pro-business state, the Texas Legislature passed and Governor Abbott signed two bills (Senate Bill 45 and House Bill 21) that significantly expand sexual harassment protections for employees in Texas, making the state’s laws more robust than federal employment laws in some respects.
The changes to the Texas Commission on Human Rights Act apply prospectively to actions occurring on or after September 1, 2021, and expand liability to employers of any size in Texas as well as individuals and increase the time limit for filing a sexual harassment charge. The key changes affecting Texas employers (including those with no physical presence, but employing remote workers in the state) are discussed below.
As of April 27, 2021, 29.1% of the U.S. population has been fully vaccinated for COVID-19. With COVID-19 vaccine eligibility expanding to the general public, and states and cities relaxing COVID-19 restrictions, employers face the new challenge of navigating a partially vaccinated workforce. We previously addressed questions related to return-to-work and vaccination issues for employers here. Below are some additional, and recent, questions we’ve received from clients related to this topic.
Thursday, October 22, 2020
Live Webinar | Noon – 1:00 p.m. CDT
Please join Husch Blackwell as we go virtual with our Health Law Conference. The series will include a range of important topics relevant to the healthcare industry and will be moderated by Curt Chase, leader of the firm’s Healthcare, Life Sciences and Education team; Hal Katz, American Bar Association, Health Law Section, Chair; and Tom Shorter, American Health Law Association, President-Elect Designate. The webinar programs will be offered every Thursday through November 19.
Healthcare providers of all sizes have received portions of the recently available federal funds. Healthcare organizations that receive these funds will need to provide accountability for their use to ensure compliance. In our fourth session, a panel will discuss various avenues to manage enforcement risk.
The Families First Coronavirus Response Act (the Act) was passed and signed into law on March 18 and will go into effect on April 2, 2020 and continue until December 31, 2020. As our colleagues Josef Glynias and Paul Pautler noted in their excellent summary, this Act has two provisions which speak to employee leave and may have significant implications for employers, including healthcare providers. The Department of Labor has not yet issued guidance on this Act, and we will update this blog as guidance is issued.
A teaching hospital in Connecticut affiliated with Yale Medical School is facing age and disability discrimination allegations after imposing mandatory medical testing for doctors 70 and older who seek medical staff privileges. The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed suit against Yale New Haven Hospital, claiming that subjecting older physicians to medical testing before renewing their staff privileges violates anti-discrimination laws.
According to the EEOC, the hospital’s “Late Career Practitioner Policy” dictates that medical providers over the age of 70 must undergo both neuropsychological and ophthalmologic examinations – a policy the federal agency claims violates both the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”). The EEOC claims that the individuals required to be tested are singled out solely because of their age, instead of a suspicion that their cognitive abilities may have declined. The agency further charges that the policy also violates the ADA because it subjects the physicians to medical examinations that are not job-related or consistent with business necessity.
Courts recognize the complication that exists when determining what constitutes actionable harassment where a healthcare employee is a caretaker for a patient with diminished capacity. The Fifth Circuit Court of Appeals recently reviewed this issue in a Title VII case that highlights the risks posed to employers in the healthcare and social assistance industries by patient harassment and violence: Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (February 6, 2019). In Gardner, the Fifth Circuit explained the risks to healthcare employers when it reversed summary judgment on a nurse assistant’s claim for hostile work environment and retaliation, holding that a genuine dispute of material fact existed as to whether an assisted living facility took reasonable precautions to prevent sexual harassment and physical violence by a resident.
Background
Gardner was a Certified Nursing Assistant employed at the Plaza Community Living Center, an assisted living facility, and “often worked with patients who were either physically combative or sexually aggressive.” Gardner had been assigned to work with a patient who had been diagnosed with multiple “physical and mental illnesses,” and had a reputation for groping female employees, as well as a history of violent and sexual behavior toward both patients and staff at the facility. Gardner alleged that she put up with propositioning and sexual assault by the patient on a regular basis, but that when she complained to the administrator at the facility, she was told to “put [her] big girl panties on and go back to work.”
The U.S. Equal Employment Opportunity Commission (EEOC) and the Denton County Public Health Department resolved a lawsuit brought against the county over alleged pay discrimination through a final judgment issued on October 24, 2018.
The Austin City Council is scheduled to vote Thursday, February 15 on a proposed city ordinance which would require all private businesses in the city to offer employees at least 8 paid sick days (or 64 sick leave hours) annually.
Under the proposed ordinance, employees would accrue 1 hour of paid sick leave for every 30 hours worked, with the ability to start using the sick leave as soon as it is earned. If passed, eligible workers would be able to use sick time if they are hurt or ill, need to care for a family member who is injured or sick, require medical attention or have a doctor’s appointment for preventative care, among other things. If an employee does not utilize all earned sick leave during the applicable year, any accrued, unused leave may be “rolled over” to the next year.