As we observed during the regular session this spring, the Legislature seems intent on taking out their COVID-19 frustration on Texas employers and health care providers. Only this time, such measures have a gubernatorial stamp of approval.
Let’s get one thing straight: the issue in these so-called “antivaccine mandate” bills is not COVID. The issue is whether the state has any business getting in the middle of employer-employee matters of this nature and, having inserted itself in the middle, what the state will do next. Once the precedent has been established that the state can punish an employer, either through civil penalties or a private cause of action (or both), for exercising the employer’s best judgment about how to operate his or her business, we have passed beyond the realm of reasonable regulation and into the beginnings of a radical restructuring of the state’s relationship to the private sector.
Most of these bills filed so far track the ones we saw during the regular session. They approach the “anti-mandate mandate” by punishing both the employer for requiring a vaccine and the health care provider for administering one. The undoubted intention of these bills is to threaten employers and health care providers with investigations, enforcement actions by the Attorney General, and civil fines for violators based on ambiguous legal standards, such as what it means that ‘[a] person may not compel or coerce an individual lawfully residing in this state into obtaining a medical treatment involving the administration of a COVID-19 vaccine.” What the devil is that supposed to mean? If an employer recommends that employees get vaccinated—say, for example, because they work with children or elderly people susceptible to infection—can the Attorney General come after the employer if an employee complains of “feeling coerced”? At what point does suggestion become “compulsion”? Does even talking about the benefits of the vaccine constitute attempted coercion if it offends somebody else?
Some of the bills seem to recognize this problem by providing that a health care provider who merely advises or recommends a vaccine “is not considered to have compelled or coerced an individual into obtaining” a vaccine “based solely on that advice or recommendation.” We very much doubt that providers will find much comfort in this “exception.” The issue here is not public health, vaccine safety, or employee protection. If it were, the bills would be narrowly tailored only to apply to people whose health conditions require a vaccine exemption or, if absolutely necessary, whose sincerely held religious beliefs foreclose the vaccine option. No, the issue is politics, and no one wants to be the first target of the Attorney General’s investigative and enforcement authority, especially if that authority requires employers and health care providers to hand over people’s private health information to the state. These bills thus beg the question of whether their purpose is to get personal identifying documentation of every vaccine administered in this state and to target employers for selective enforcement.
SB 7, which appears to be the vehicle legislation and which TCJL adamantly opposes, is more of the same. It leaves employers facing costly litigation with the state, potential civil penalties levied by the Workforce Commission, and possible investigative demands from the attorney general. The bill includes no safe harbor provision for compliance with federal law or protocols, and no real remedies for employers who are falsely accused to discriminating against an employee based on a COVID-19 vaccine mandate. For employers in the health care sector, the bill in its current form will cause all kinds of problems, from endangering patient safety to Medicare reimbursement issues. What a mess.
There is no question that politicizing health care in particular circumstances will inevitably lead to politicizing it in an increasing number of circumstances. Employers and health care providers, as they do in these bills, will bear the burden of enforcing highly contested policy choices, thus compromising their relationships with their employees and patients. This is a travesty and will have long-term negative implications for the Texas business climate about which we have boasted for so long. In our rush to protect some people’s “freedom,” we are taking it away from every single employer in the state to do what’s right for their business.
