This morning the Texas House will take up legislation that sets an ominous precedent for the future and puts businesses and health care providers on notice that, when it comes to appeasing somebody’s electoral base, the Legislature will now feel free to substitute its judgment for the people who actually run businesses and deliver health care to our citizens.
SB 7 prohibits an employer from requiring an employee, contractor, applicant for employment, or applicant for a contract position to be vaccinated against COVID-19 as a condition of employment. It further prohibits an employer from taking an “adverse action” for refusal to be vaccinated. Incredibly, this goes for all employers, including hospitals, medical practices, and other health care facilities that treat vulnerable patient populations, such as premature infants in neonatal intensive care units and immune-compromised patients in skilled nursing facilities. The bill does purport to allow a hospital or physician to enforce a “reasonable policy” requiring the use of personal protective equipment by unvaccinated personnel, which is a little like closing the corral gate when the horses have already bolted. It will also put providers in the position of having to justify themselves—as if they should have to—in response to the inevitable complaints designed solely to harass providers with investigations.
Which brings us the question of complaints and investigations. SB 7 puts the Texas Workforce Commission in charge of the witch hunts. If somebody files a complaint against an employer, the commission “shall” investigate. If a complaint against a health care provider comes in, the commission will “consult with” the DSHS “in determining if a [PPE] policy [] was reasonable,” whatever that means. If the commission wants to bring the attorney general into the matter, it may request the OAG to bring an action for injunctive relief against the employer. This part of the bill is better than the filed version, which gave the OAG authority to file suit against employers on its own motion, but it remains to be seen just how the commission will handle this discretionary authority (that is, if it is ever used).
The House version of SB 7 increased the civil penalty from between $1,000 and $10,000 per violation to a flat $10,000. In mitigation, the penalty won’t apply if the employer hires or offers the complainant or reinstates the complainant with back pay. One way or the other, the commission may recover “reasonable investigative costs,” whatever those may be. There is nothing in the bill that allows an employer to recover the employer’s costs if the complaint was groundless or filed for the purpose of harassment.
This bill is terrible public policy on multiple levels, regardless of whether a single employer is ever prosecuted. There is no obvious reason, for example, why it should be limited to COVID-19 vaccinations. Indeed, anti-vax advocates want SB 7 expanded, so we’ll see what happens now or in the future on that score. Worst of all, the Legislature had decided that it can impose a blanket mandate on employers without any consideration of the individual circumstances under which employers operate in the real world. In so doing, it has determined that partisan political interests outweigh everything else when it comes to how the private sector sees fit to conduct its business. Unfortunately, forcing businesses and health care providers to carry out the Legislature’s wishes on any number of “social” issues on pain of losing their livelihood has become all too commonplace. It is only a matter of time before the burden becomes unsustainable. It also cuts both ways. When the political winds eventually swing around, the precedent will be there still.
The bill fails virtually every one of TCJL’s conservative business principles. It creates no-injury business liability and a regulatory cause of action. It undoes a central feature of the Pandemic Liability Protection Act, which shields businesses from liability for complying with federal or other mandates. It obviously imposes new civil liability on businesses. And it grossly interferes with a business’s freedom to contract with whom it pleases and on what conditions is pleases. There’s no sugar-coating it or explaining it away on the basis that COVID is “over” anyway. It doesn’t matter whether it’s “over.” What matters is that the Legislature is putting another anti-employer law on the books.
Texas has long prided itself on its business-friendly regulatory environment. SB 7 and the policy it represents takes us in the opposite direction.
