Tag Archives: Texas Employment Law

Can an Employer Require COVID-19 Vaccinations of Employees?

Vaccinations for the COVID-19 virus began to be administered here in Amarillo for the first time on Tuesday, December 16, to hospital workers, and now employers are asking if they can require their employees to get vaccinated when vaccines become available to more of the public.

In general, the answer is, yes, an employer can require employees to get vaccinated in order to provide employees and customers a safe environment. Medical and dental offices, schools, food production facilities, nursing homes and other high-risk workplaces will likely mandate vaccinations for their employees. But should other employers require COVID-19 vaccinations?

Duty to Provide a Safe Workplace

A Texas employer currently can legally require vaccinations to provide a safe workplace for their workers. No Texas law prohibits this. As for the relevant federal agencies, the Occupational Safety and Health Administration requires employers to provide safe workplaces. And the Equal Employment Opportunity Commission has just indicated in new guidance that it will not object to employers mandating vaccinations.

OSHA’s general duty clause requires that each employer furnish to its employees a workplace that is free from recognized hazards that could cause death or serious physical harm. A fully vaccinated workplace could provide that safety to your employees. And that mandate could protect you as an employer from federal intervention with the new administration in Washington, D.C. Employers can expect increased enforcement by OSHA under the Biden administration, so mandatory vaccinations will give your company a defense to any allegation that you did not make your employees safe from the recognized dangers of COVID-19.

The EEOC has recently issued guidance supporting mandatory vaccination. In new Equal Employment Opportunity Commission guidance on vaccinations released December 16 (question K5), the EEOC says that an employer can impose on its employees “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace”.

Disability and Religious Objections

Texas employment is generally “at will”, meaning among other things, that an employer can set its own policies and an employee who does not like those policies can quit. Under current Texas law, that holds true with mandatory vaccinations, as long as Texas employers carefully handle two types of legal objections—disability and religious accommodation.

On Wednesday, the EEOC issued specific guidance about vaccinations at work (section K). As expected, the EEOC says that employers will be allowed to mandate COVID vaccines, with those two exceptions: (1) religious objections (Christian Scientists and some branches of Islam come to mind) under Title VII based on a sincere religious belief; and (2) disability (such as Guillain-Barré Syndrome) under the Americans with Disabilities Act.

Being an anti-vaxxer is not a religion, so that belief will not be enough to claim an exemption. Courts have confirmed in the past that social, political or economic philosophies are not protected under Title VII protection of religion, so unless an employee has a sincere religious objection or a legitimate disability, you don’t have to accommodate an employee’s failure to cooperate by allowing him/her to opt out of the vaccinations.

You do have to be careful as you address religious or disability objections to vaccination. The EEOC wisely points out in its new guidance (question K5):

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability [or religious objection] and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). 

Continue reading Can an Employer Require COVID-19 Vaccinations of Employees?

COVID-19 Wildfire in the Texas Panhandle

COVID-19 infections in the Texas Panhandle are raging like a wildfire, so what is an employer’s duty to prevent its spread and what procedures should be followed with COVID-positive employees, quarantines, and employees whose off-duty behavior is pyromaniacal?

As of Friday, October 30, Amarillo’s hospitals are alarmingly full of patients suffering from COVID-19. Our hospitalization rate yesterday was 27.4%, meaning that our area has exceeded the governor’s 15% threshold (to shut down bars, stop elective surgeries and reduce occupancy of businesses and restaurants to 50%) for 13 days. El Paso is the only spot in Texas faced with worse effects of the pandemic at this time.

Our local officials and physicians are exceedingly alarmed about our overburdened hospitals, begging Panhandle citizens to stay home as much as possible and wear a mask when in public, along with practicing social distancing, hand-washing, etc. We all have to “decrease our social calendars and increase our COVID-consciousness,” Amarillo Mayor Ginger Nelson said, because our infections are not arising from large hotspots like prisons or meatpacking plants, but from birthday parties, baby showers and other small community-spreading events. And city officials are saying that the next six weeks of holiday celebrations could make a bad situation even worse.

Despite COVID fatigue, it is clear that hoping for “herd immunity” to COVID-19 in our area is not an option because our hospitals are already overwhelmed. Waiting for everyone to develop immunity to this disease is like passively watching a wildfire burn thousands of acres today and believing that if 2021 turns out to be a wet year, that future precipitation will help extinguish the current blaze.

City leaders are begging employers to take the lead to educate and monitor their employees. Some employers are returning to remote work options that were common in the spring of 2020. If employees are to remain in the workplace, your business should be enforcing Governor Abbott’s mask order, GA-29, which requires masks be worn inside commercial establishments whenever employees are less than six feet apart. It only makes good business sense to follow these mandates to try to reduce the absenteeism of your employees and lost productivity, not to mention avoiding the cost of providing paid time off to your sick and quarantined employees. I’ve already counseled some small employers who did not have enough healthy employees, so they had to close the business for several days.

But while enforcing good health and safety practices inside your business is important right now to prevent as much spread of COVID-19 as possible, you are still going to have to deal with some employees who become infected or have had direct exposure to the virus. I’ve previously addressed the six steps for dealing with these infections and exposure. However, there has been an avalanche of new information and protocols since I last wrote about employer COVID procedures, so here is an updated summary:

Continue reading COVID-19 Wildfire in the Texas Panhandle

Can I Drug Test My Texas Employees for Marijuana?

As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

Continue reading Can I Drug Test My Texas Employees for Marijuana?

Employees Secretly Recording Workplace Conversations

Is it legal for one of your employees to secretly record your conversations with that worker for the employee to use as evidence in a discrimination case? If you are a Texas employer, the answer is “yes”.

Texas is a “one-party” consent state, meaning that as long as one party to the conversation knows about the recording, the recording is legal. This can lead to your employee secretly starting the video app on his smartphone in his pocket just before he walks into your office for a disciplinary meeting. He knows the conversation is being recorded, so as the supervisor, you don’t have to be informed in a one-party consent state like Texas.

More than 30 states have the one-party consent rule, while California, Washington, Florida and a few other states require that every person being recorded give permission to the recording. These “all consent” states make it impossible for a supervisor to be secretly taped when talking to an employee. Making a recording without permission in one of those all consent states can lead to both criminal liability and exclusion of the tapes as evidence in the employee’s discrimination or other lawsuit.

In Texas, however, when an employer is taped, the recordings can be material evidence when an employee sues for discrimination. The Houston Chronicle reported in 2011 that one-third of the discrimination complainants who reached out the Equal Employment Opportunity Commission office in Houston brought audio tapes from their workplace to play for the EEOC investigators.

If there is a recording with you as a supervisor using a racial slur, firing an older employee while saying that the company needs “fresh and energetic workers” or suggesting to a subordinate that he/she can expect a raise if the employee will accompany you to a hotel, you might as well get your checkbook and pen out now to facilitate the inevitable settlement.

Besides the obvious – THINK BEFORE YOU SPEAK, here are some other steps you as an employer can take to protect yourself and the company from employees taping all of your interaction:

  • Adopt a written policy banning recording: As of June 2018, the National Labor Relations Board has newly declared that employers may prohibit employees using recording devices and cameras at work. This is a change from a 2015 NRLB opinion that such policies had a chilling effect on employees asserting their rights to document poor working conditions. In 2018, it was decided that no-photography/no-recording rules have little impact on NLRA-protected rights and could actually improve working conditions by forcing supervisors and subordinates to have open discussions and exchanges of ideas.
  • Ask employees if they are recording: Before you have a hard discussion with an employee, such as a disciplinary warning, ask the employee if he/she is recording the conversation. Make a written note of his response (juries don’t like liars who produce recordings when they stated they weren’t taping). You can remind the employee about the company policy prohibiting such recordings. Ask the employee to set his phone on your desk so you can assure that he isn’t recording or, even better, have him leave it at his desk before coming into your office.
  • Be careful about disciplinary actions for recording: If an employee does record in your workplace, don’t automatically warn or fire that employee even if it violated your policy. You need to know what the employee recorded, so ask to listen to the tapes. If the employee did record or photograph unsafe workplace conditions, sexual propositions, racial epithets, etc., then you need to do a formal investigation and apply effective remedial measures to fix the problem the employee’s recordings uncovered. Then carefully decide with your legal counsel whether disciplining the employee who violated your recording policy could lead to an unfair labor practice, retaliation or whistleblower claim.
  • As the employer, don’t audiotape others in the workplace without consent: While you may have video cameras in the non-private areas of your workplace for safety purposes or to monitor productivity, it becomes more complicated to make audio recordings. Wiretapping (recording the conversations of others without consent when you are not a party to the discussion) is illegal under several statutes. So, you would need permission of every employee as well as the consent of every vendor or guest who comes into your business if you were going to wholesale audiotape all the interactions in your workplace. It can be done, but it is complicated to do correctly, and the wiretapping law is easily violated. And personally, in more than 30 years of practicing employment law, I’ve only seen a handful of situations where widespread audio recording was helpful to a lawsuit defense, much less positive employee relations.

Texas Employers Must Comply with Election Laws

Since Election Day is Tuesday, November 6, here are some quick reminders for employers about the Texas election laws that you must follow.

Employers must give all employees a reasonable time off to vote on Tuesday, assuming the employee hasn’t taken advantage of early voting.  So here’s how you apply that law:

  • You can ask if the employee voted early, but you cannot retaliate against an employee for his/her failure to take advantage of early voting. 
  • You need to just accept the employee’s word about whether he/she voted early.

A “reasonable time off to vote” is considered two hours. However, since the lines are predicted to be long on Tuesday, do not discipline any employee who has to wait in line to vote and thereby takes a little longer than two hours away from work. 

The time off to vote should be paid time off if it cuts across the working hours, according to a Texas Attorney General’s opinion. 

It is a crime for an employer to:   Continue reading Texas Employers Must Comply with Election Laws

Written Policies to Protect Your Business During the Opioids Epidemic

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic

Running Off an Underperforming Employee Is Not a Viable Option

In my long experience as an employment law attorney, I have come to realize that employers really, REALLY hate to fire employees. Some employers are scared of confrontation, others hate admitting they made a bad hire, and some just can’t find the right words.

Whatever the reason for being unable to fire a poor performer, employers often ask me about “running off the employee”. Running off an employee usually means making the employee so miserable the employee will voluntarily quit.

The employer trying to run off an employee may give the employee the worst duties at the company, criticize the employee in front of others, deny the employee’s vacation request, cut the employee’s pay, transfer the supervision of the employee to the worst supervisor, or make the employee work the graveyard shift.

Of course, this approach to termination often also makes the employee so angry that when the employee leaves, he or she becomes much more likely to sue the employer.

Running off an employee is the layman’s way of doing what we in the legal field call a “constructive termination”. A constructive termination occurs when the employer makes the working conditions so intolerable that any reasonable employee would feel forced to resign.

When an employee quits with good cause because the employer made continuing to work there intolerable, there are numerous legal consequences, such as: Continue reading Running Off an Underperforming Employee Is Not a Viable Option

Workplaces Must Accommodate A Nursing Mother

A nursing mother in your workplace has certain employment rights that you as an employer must understand. Until the time that the child is one year old, Texas employers must provide the time and space for the mother to breastfeed the baby (if children are allowed at the workplace) or to express milk to be stored for later.

The federal compensation law, the Fair Labor Standards Act (“FLSA”), was amended in 2010 to require employers to provide nursing mothers with “reasonable” break time to pump breast milk. Employers must realize that there is no one definition of what is “reasonable” that applies to every new mother.

The Department of Labor says in its Fact Sheet #73 regarding Break Time for Nursing Mothers, “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk, as well as the duration of each break, will likely vary.” Speaking from experience, nursing may take 10 minutes, 25 minutes, 40 minutes or even longer and isn’t standardized from mom to mom, day to day, or break to break.

If you provide coffee breaks or meal breaks during the day to other employees and pay them during that break (which the FLSA requires you to do if the break is less than 20 minutes), then you should allow your nursing mothers to use those breaks if convenient and be paid during those breaks just like any other employee.

Otherwise, nursing breaks do not have to be compensated, so you can require a nonexempt (hourly) employee to clock out during the break so that the nursing break isn’t paid. If that means that the employee has to stay longer each day to actually perform work for 40 hours per week, you as an employee can require that extra time. Or you can choose to pay the employee for only the hours worked, which may be less than 40 when lots of nursing breaks are taken.

The easiest way to address compensation is to have a written policy that states that all nursing breaks of 20 minutes or less are paid, but longer breaks are unpaid.

You also have a responsibility as an employer to provide a place for the nursing mother to breastfeed or express milk. That place cannot be a bathroom. The area must be private with a lock on the door or another way to assure that the public and/or coworkers won’t barge in while the employee is nursing or pumping. If you have more than one nursing mother employed at a time, it is common practice to have a sign up or reservation-type system for the room you designate for expressing milk.

The secluded place the employer provides must be functional for expressing milk, meaning it should at least be furnished with a comfortable chair. Many employers provide a small dorm-sized refrigerator and a Sharpee in the nursing area so that the expressed milk can be labelled and dated and kept cool until the new mother can take it home.

Texas allows employers who adopt a new mother-friendly written policy to advertise that it is a “mother-friendly” business. If that “carrot” approach doesn’t convince you, then the “stick” is that failure to provide adequate breaks and a secure place for nursing mothers means that not only will your business be violating the FLSA, but also the employee can bring a sex discrimination or sexual harassment action if you have at least 15 employees.

A federal court has also ruled that breastfeeding is a medical condition related to pregnancy and maternity, so you can also be sued under the Pregnancy Discrimination Act. You must additionally prevent an employee from being retaliated against for exercising her rights as a nursing mother, i.e., you must assure that her supervisor doesn’t give her a poor evaluation or demote her because her nursing rights create some disruption in the office.

Small employers (less than 50) have one defense to these kinds of claims. Continue reading Workplaces Must Accommodate A Nursing Mother

Why Drug Test Your Current Employees?

As an employer, you should be committed to a drug-free and alcohol-free work environment that protects both your employees, your customers and the general public.

Drug testing your employees is an important component of that safety commitment. However, while many employers test before hiring an applicant, nearly two-thirds of employers never conduct a drug or alcohol test on current employees, according to a Society for Human Resources study in 2011.

When employers do test current employees for drugs, employees test positive about 4.2% of the time, according to the latest numbers from the annual Quest Diagnostics Drug Testing Index. That number is creeping up and is at its highest level since 2004.

Even if you are a small employer with only 25 employees, that still means that one of your current employees could test positive for drugs right now. What if that one person is the delivery driver, the heavy machinery operator, the EMT, the security guard or any other safety sensitive employee working for you? Are you willing to take a chance with the safety of your other employees and your customers?

That only 4.2% of employees test positive for drugs or alcohol is actually a little low considering how many people are actually addicted to those substances. The National Survey on Drug Use and Health in 2016 estimated that 8% of all Texans have a substance abuse disorder, with three-quarters of those Texans addicted to alcohol. The rest are hooked on marijuana, meth, heroin, cocaine and prescription opioids, in that order.

As a Texas employer, you don’t have to allow employees to be impaired at work. Continue reading Why Drug Test Your Current Employees?