All posts by Vicki

Commission Pay Arrangements in Texas

Compensation, Documentation, , ,

If you as an employer pay any of your employees on commission, a recent Texas Supreme Court case makes it clear that your commission arrangement needs to be in writing.

The Court decided Perthuis v. Baylor Miraca Genetics Laboratories LLC in May 2022. In that opinion, the Court addressed the question of when a former employee has to be paid commissions collected by the company after the employee has left the job. In this case, the Texas Supreme Court determined that Brandon Perthuis, the former vice-president of sales at the company, would be entitled to a commission on the largest sale in the company’s history, even though he was terminated the day before the client signed the sales contract (but four days after Perthuis finalized the negotiations for the sale).

The Court reviewed the commission pay agreement and found that it was silent on whether the employee would get paid commissions after his employment was terminated. In the absence of a clear agreement, the Court followed the “procuring-cause doctrine,” meaning that if the employee was the reason the sale was procured, then he was entitled to the commission.

Perhaps the most important part of the Court’s opinion for any company that pays commissions is this: The procuring-cause doctrine provides nothing more than a default, which applies only when a valid agreement to pay a commission does not address questions like whether the  right  to  a  commission  extends  to  sales  closed  after  the  employment relationship ends.  

The procuring-cause doctrine is not a judicially created “term” for commission  contracts. It  does  not  add  anything  to  a  contract  or  take anything away. It does not restrict parties’ ability to modify their contractual  relationships  and  it  does  not  change  the  law  governing whether parties have entered into such a relationship in the first place. Parties certainly may condition the obligation to pay a commission on something  other  than  procuring  the  sale—they  need  only  say  so.

So the Court is saying that the company and the employee can negotiate any kind of commission pay agreement that they want. Or the company can just offer a commission arrangement and the employee can accept it. The courts will only intervene if your commission agreement is not in writing or if your written commission arrangement is silent as to an important term.

So what should a written commission pay arrangement include if any employee is paid fully or partly on commission?

Continue reading Commission Pay Arrangements in Texas →

Vaccine/Testing Mandate Voided by Supreme Court for Businesses with 100+ Employees; Healthcare Workers Mandate Upheld

COVID-19, Medical, Personnel Policies, , , ,

On Thursday, January 13, 2022, the United States Supreme Court completely voided the OSHA Emergency Temporary Standard that required employers with 100+ employees to institute this week a vaccine or testing requirement on its employees. However, the Supremes also upheld the OSHA requirement that any size of healthcare facilities that accepts Medicare or Medicaid payments must vaccinate their workers.

The Large Employer Rule Struck Down

When addressing the OSHA ETS for large employers, the Supreme Court majority stated that the Secretary of Labor had acted too broadly. The six conservative justices ruled that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”

They went on to emphasize this opinion that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

Technically, the mandate is “stayed” pending more legal action in the Sixth Circuit and possible writs of certiorari back to the Supreme Court. However, for all practical purposes, large employers can stop their efforts to determine the vaccination status of employees, stop requiring masks of all unvaccinated employees, forget about workplace testing for COVID-19 beginning in February and withdraw the written policies they just put into place.

Healthcare Mandate Gets Approval of Supreme Court

Healthcare facilities, however, have to get into compliance with the CMS mandate. The 5-4 decision states that the Secretary of Health and Human Services does have the power to require vaccinations of healthcare workers (except those with medical or religious exemptions). “Ensuring that  providers take steps to avoid transmitting  a dangerous virus to  their patients is consistent with the fundamental principle of the  medical profession:  first,  do  no  harm.  It  would be the very opposite of efficient and effective  administration for  a facility that is supposed to make people well  to  make them sick with COVID–19.”

There has been a stay pending on this mandate in 26 states, including Texas. However, that stay is no longer effective, and 10 million healthcare workers will have to be fully vaccinated or claim a medical or religious exemption (which may make them ineligible to work) in the next six weeks. Unless Health and Human Services updates their schedule, healthcare facilities that received Medicare or Medicaid payments have until January 22 to get a written vaccination mandate in place. By that date employees either have to have had at least one dose of the vaccine or have submitted a medical or religious exemption request.

By February 28, healthcare employees have to be fully vaccinated or have been granted an exemption. And exemptions don’t mean that the employee can keep working. For example, unvaccinated employees may not be able to be involved in direct patient care. Eventually, that could result in no available work for that employee. Employers should get their employment lawyer involved in the exemption process because it can lead to eventual termination of the exempt employees, which has to be done carefully to avoid discrimination claims.

Texas Employer’s New Year’s Resolutions for 2022

Compensation, Discrimination, Drug Testing, Medical, New Year's Resolutions, Personnel Policies, Sexual Harassment, , , , ,

The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?

After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.

Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)

Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.

In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.

I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:

  • January 10, 2022:
    • Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
    • Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
    • Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
  • February 9, 2022:
    • Employers must start testing unvaccinated employees weekly.
    • OSHA will start enforcing the ETS.

In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS.  And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.

The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.

Get Serious About Preventing Sexual Harassment

As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.

To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.

Continue reading Texas Employer’s New Year’s Resolutions for 2022 →

New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees

Documentation, Forms and Policies, Medical, Personnel Policies, , ,

The Occupational Health and Safety Administration released its new vaccine mandate as an Emergency Temporary Standard today for employers who have at least 100 employees (“large employers”). The ETS is effective on November 5, 2021, and large employers only have 60 days to fully implement their vaccination plan, so time is of the essence.

Each large employer can decide if that company is going to (1) mandate that every employee gets vaccinated (while allowing limited religious and medical exemptions) or, instead, (2) mandate that its employees have a choice between vaccination and weekly testing. However, either way, large employers have to start requiring all unvaccinated employees to be masked at all times indoors as of December 5, 2021, except when they are alone in their own closed office. The new rules are summarized here.

Here are the highlights of the Emergency Temporary Standard mandate:

Does it apply to your company?

Do you have 100 names on your payroll (full-time, part-time, temporary or seasonal workers who perform work for your company at any point on or after November 5, 2021)? If so, this ETS applies to your company. “In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work,” according to the FAQs released by OSHA today.

The count of employees is corporate-wide, not by individual location. Even those who are working from home are counted (although some parts of the mandate do not apply to those workers who are exclusively remote workers). Similarly, those who work exclusively outside are counted when determining if you have 100 workers, but the mandate does not apply in the same way to outside workers.

Independent contractors are not included when you are counting to 100. Neither are temporary workers that you use who are actually employed by a staffing company.

Federal contractors were already subject to a separate vaccine mandate under Executive Order 14042. Healthcare employers who receive Medicare or Medicaid funds have their own stricter vaccination ETS also released today, which does not allow for testing as an alternative to vaccination. To make it easier for all employers to comply with the differing requirements, the deadline for the federal contractor vaccination requirement has been aligned with those for the healthcare entity rule and the large employer rule. Employees falling under the any of these rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. 

But what about Gov. Abbott’s Executive Order Saying No Vaccine Mandates in Texas?

I won’t get into all of the politics of this, but this OSHA standard preempts Gov. Abbott’s order (which he couldn’t persuade the Texas Legislature to turn into law in the last special session). The U.S. Supreme Court has already backed vaccine mandates in at least three separate instances this year. I would not count on the Supremes ruling that Gov. Abbott’s executive order will prevent OSHA from enforcing this new Emergency Temporary Standard. And you probably don’t want the exorbitant legal expense for your company to be the test case for this political pissing match between the state and the feds anyway.

What are my next steps?

Continue reading New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees →

How to Hire and Retain During the “Big Quit”

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Almost daily, my employer clients are telling me about their inability to hire workers to fill job openings in the Texas Panhandle. This local trend reflects a nationwide problem. The Bureau of Labor Statistics just reported last week that 4.3 million people left their jobs in August 2021, the highest “quits rate” since the BLS started tracking the numbers in 2001.  

Industries that were most affected by this high quits rate in August included hotels, bars, restaurants, retail, manufacturing, construction, healthcare and education. The media has dubbed this as the “Great Resignation” or the snappier “Big Quit”.

We knew this was coming even before the BLS released that report on October 12. Surveys by Microsoft and by the Society for Human Resource Management earlier this year both found that 40% of employees say they have or will quit their jobs in 2021. That’s double the number in 2019, just before the pandemic.

There are lots of reasons why employees are participating in the “Big Quit” and employers are having such a challenging time filling open positions. But the reasons are not solely, or even chiefly, related to government handouts. Ending the federal supplement to unemployment in Texas and other states at the end of June 2021 didn’t create any improvement in employers’ ability to hire. In fact, the recent BLS numbers showed that employees walking away from their jobs markedly increased after the unemployment benefits expired.

Reasons for the Big Quit

The reasons for the Great Resignation seem to be related to what employees discovered about themselves and their jobs during the pandemic:

  • More than four million Americans dropped out of the labor force entirely during the pandemic, particularly women and workers over 55 years old. They had reasons ranging from childcare duties, to early retirement, to concerns about contracting COVID. Sixty-eight percent of workers who told SHRM that they were going to quit their jobs in 2021 said that they decided to make a change during the COVID-19 pandemic. Extended time at home has convinced many workers that they are dissatisfied with their current career and would rather transition to being a stay-at-home parent, pursue a new educational opportunity, look for a better job or retire.
  • A huge wave of Baby Boomers retired, many because of unpaid furloughs during the pandemic. But a year later, even more are retiring, reporting that they have reached the point of exhaustion and will be happier if they leave the workplace altogether, even if it means a less healthy retirement income. The estimate is that 10,000 Boomers retire each day in the US, and because the following generations are smaller, finding and retaining replacements for the Boomers is proving difficult and a long-term problem, projected to continue for the next 10-15 years.
  • Restaurant staff, grocery store employees, delivery drivers, heathcare workers, teachers, retail workers and others reached their breaking points. “Throughout the pandemic, essential workers – often in lower paid positions – have borne the brunt of employers’ decisions. Many were working longer hours on smaller staffs, in positions that required interaction with the public with little to no safety measures put in place by the company and, at least in the US, no guarantee of paid sick leave. It quickly burnt workers out,” concluded a BBC report.
  • Low wages are a hugely motivating factor in the Great Resignation. The federal (and Texas) minimum wage hasn’t increased above $7.25 since 2009, even though the consumer prices have. An item that cost $7.25 in 2009 now costs $9.27 in 2021. Employees who make these minimum wage know that they sink further into poverty every year, and they are running away from low paying jobs as fast as possible.
  • The SHRM survey found that 53% of the people leaving their jobs in 2021 did it for better compensation. Employees who are stressed and in low satisfaction jobs with irregular schedules like food service don’t have to perform that work anymore for the low wages that employers were paying before the Big Quit. “Workers’ wages are rising at the fastest pace in years, due largely to structural shifts in labor markets, talent supply challenges and potential inflation.  Research shows 72% of companies are updating pay and benefits programs in 2021 to address multiple challenges”, according to Forbes.  

This kind of massive reorganization of the labor market happens after world wars and economic recessions. The COVID pandemic has apparently created the same type of seismic shift where it is a seller’s market for employees to demand and receive better employment perks in exchange for agreeing to perform the work.

So what should a Texas Panhandle employer do to improve recruiting of employees for all those open positions in 2021?

Continue reading How to Hire and Retain During the “Big Quit” →

Small Texas Employers Newly Liable for Sexual Harassment

Discrimination, Management, Personnel Policies, Sexual Harassment, ,

Texas employers who have less than 15 employees are no longer protected from sexual harassment claims under the small employer exception. Senate Bill 45, signed by Governor Abbott on May 30, 2021, changes the standard definition of employer in the Labor Code for sexual harassment complaints from “employs fifteen or more employees” to “employs one or more employees”.

This is a major change for small businesses in Texas. It overturns a long-time affirmative defense that many small businesses have relied on to avoid litigation without really worrying about improving their behavior.

New Texas Sexual Harassment Law

Both the federal discrimination law, Title VII, and the Texas discrimination law, Labor Code chapter 21, have excepted small business from any liability for employment actions taken in whole or in part on the basis of sex, religion, age, disability, etc. While the 15-employees or more exception still applies to all of those other categories for the time being, preventing sexual harassment has received a new treatment by the Texas Legislature and, as of September 1, applies to every Texas employer, regardless of employee headcount.

In addition, Governor Abbott signed a companion bill, House Bill 21, on June 7, 2021, that extends the time for filing a sexual harassment claim under §21.141 from 180 days to 300 days after the last harassing act occurred. So now, any Texas employee claiming that they have been sexually harassed in any workplace will have ten months instead of six months to complain to the Texas Workforce Commission’s Civil Rights Division.

“Sex” includes Sexual Orientation and Gender Identity

Here is an interesting twist to this legislation. Last year, the U.S. Supreme Court ruled that the word “sex” in Title VII’s discrimination prohibitions includes sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. __ (2020). Recently, a Texas Court of Appeals addressed the issue of whether Bostock applies to Texas Labor Code Chapter 21, which bans discrimination in Texas “because of sex.” Tarrant Cnty Coll. Dist. v. Sims, No. 05-20-00351-CV (Tex. App—Dallas, Mar. 10, 2021).

The state appeals court in Dallas held that, in light of the U.S. Supreme Court’s decision in Bostock, they were compelled to read Chapter 21’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.” It is no stretch to apply the Dallas court’s reasoning to sexual harassment, which is just a type of sex discrimination.

Small Businesses Need New Policies

With that background, even the smallest Texas businesses need to make sure they are not allowing any employee or customer to harass another coworker based on that coworker’s sex, sexual orientation or gender identity. While some courts may rule down the road that is not what the Texas Legislature meant to do in its ultra-conservative 2021 legislative session, you do not want your small business to be the test case on Texas’ new sexual harassment law.

Most small employers do not even have Equal Employment Opportunity language or Sexual Harassment policies in their employee policy manuals. That will have to change before September 1, 2021, when SB 45 goes into effect as Tex. Labor Code §21.141.

The new law only applies to harassment in a small business that occurs after September 1, 2021, so if you are a small business owner, now is the time to clean up your employees’ language and offensive behavior (and your own, if any). 

There are other preventative steps every Texas employer needs to take besides just adding a written policy.

Continue reading Small Texas Employers Newly Liable for Sexual Harassment →

How Employers Can Do Everything Right

Discrimination, Documentation, Litigation, Management, Termination, Training, , , ,

University Medical Center in Lubbock won a big victory in an age discrimination case by doing everything right (suggesting to me that they followed the advice of their employment lawyers). Employers can learn eight important lessons from the Fifth Circuit Court of Appeals decision issued in the case of Salazar v. Lubbock County Hospital District d/b/a University Medical Center (opinion issued December 7, 2020).

Age discrimination cases are difficult for employers to win because the elderly make very sympathetic plaintiffs and the judges and jurors themselves are often older. But this case gives a blueprint to managers of how to dispassionately and carefully handle the termination of a poor-performing employee.

The allegations that plaintiff Rosemary Salazar asserted in this case sound really bad for the employer in an age-discrimination claim. Salazar had worked at the hospital for 27 years before she was fired in 2017 for poor performance and failure to change her behavior. She was 57 years old at the time of her termination and alleged not only was her firing discriminatory, but also that the same supervisor in her department fired three other long-time employees who were over the age of 60.

Salazar also claimed that she had been given good performance evaluations and that she had “received numerous raises for her job performance.” Finally she said that the employer did not follow its own progressive disciplinary policy in terminating her.

How did UMC manage to get a win the summary judgment motion and the appeal in this case? In a word: documentation.

Continue reading How Employers Can Do Everything Right →

“No Vaccination Passports”: What Does Abbott Mean?

Documentation, Employee Rights, Medical, Personnel Policies, ,

Texas Governor Greg Abbott signed an Executive Order on April 5, 2021, purporting to ban “vaccination passports” in Texas. But Texas employers are asking, “What does this mean for my business?”.

Abbott has said that in Texas “vaccinations are voluntary and never forced.” He continued by saying:

Government should not require any Texan to show proof of vaccination and reveal private health information just to go about their daily lives. That is why I have issued an Executive Order that prohibits government-mandated vaccine passports in Texas. We will continue to vaccinate more Texans and protect public health — and we will do so without treading on Texans’ personal freedoms.

https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-mandated-vaccine-passports

Of course, that press statement only addresses the government’s role and says nothing that clarifies how private Texas businesses are supposed to respond.

“Vaccination passports”, in the form of written documentation of having received a vaccination, have been used for years to prevent global travelers from spreading diseases. They are also required in most public schools (although Texas allows parents to sign an written opt out form because of vaccination objections).

Your college student probably had to prove vaccination for meningitis before moving into a dormitory. Few Texans cried “governmental overreach” when that meningitis vaccination requirement assured that their 18-year-old son or daughter would be protected from a potentially fatal disease that rapidly spreads in communal environments such as dorms.

Indoor sports arenas, performing arts centers, and live music venues have been hoping that vaccination passports would allow those venues to assure the public that they are once again safe to come back to live performances while sitting 18″ from the person in the next seat for a couple of hours.

But like masks, COVID-19 vaccinations have become a political hot potato. Gov. Abbott, seeking to appease a very vocal minority, generated headlines that proclaimed “Abbott Bans Vaccination Passports”. Once you dig down into the actual wording of Gov. Abbott’s Executive Order, you find that only these actions are prohibited:

Continue reading “No Vaccination Passports”: What Does Abbott Mean? →

How the Stimulus Bill Benefits Small Employers

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The Families First Coronavirus Response Act has expired as of December 31, meaning that employers are no longer obligated to provide two weeks of emergency paid sick leave to employees who miss work because they are sick with COVID-19 or were exposed and quarantined.

However, employers may still voluntarily provide this paid sick leave through March 31, 2021, and claim the federal payroll tax credit if they do so.

The same holds true for paid family leave if schools are completely closed (which rarely has been happening in the Panhandle of Texas). If an employer voluntarily pays up to 10 weeks in paid family leave while still following the FFCRA rules about who is eligible for this leave, the employer can get the federal government to absorb the cost of that leave through the tax credit mechanism.

This tax credit extension during the first quarter of 2021 is just one part of the new stimulus bill signed into law on December 27 that affects employers. To be clear, if an employee has already used up the 80 hours of emergency paid sick leave or 10 weeks of paid family leave during 2020, this tax credit extension does not mean that you as an employer can take a tax credit for any additional COVID-related leave given to that employee in 2021.

The helpful Paycheck Protection Program has been funded again in the new stimulus bill, but there is a new twist to it that may be very beneficial to small businesses who continue to be adversely affected by the pandemic. A business can apply for a second PPP loan, even if you received one in 2020, as long as you can show that you had at least one bad revenue quarter in 2020.

These “Second Draw” PPP loans are available if you can demonstrate:

  1. You employ no more than 300 employees; and
  2. You have used all of your earlier PPP loan; and
  3. You had gross receipts in one quarter of 2020 that were at least 25 percent less than the same quarter in 2019.

Another piece of good news coming out of the stimulus bill is that Congress corrected a ridiculous IRS opinion that said while your PPP loan(s) were going to be taxed as income to your business, you couldn’t deduct the business expenses that you paid with the loan proceeds. That has now been clarified to reflect Congress’ original intention—the loan proceeds will not be taxed as income and the expenses that you paid with them (payroll, rent, utilities, etc.) will be deductible as normal business expenses.

Congress also simplified that forgiveness process even more for PPP loans under $150,000. You’ll now have to just self-certify that you spent the PPP loans as required by law.

Congress also addressed unemployment insurance for the 20 million Americans who are still out of work. Under the CARES Act passed in the spring of 2020, in addition to state unemployment benefits (which are very skimpy in Texas), the federal government provided an additional $600 per week through July 31, 2020. After that expired, the unemployed were left with just their state benefits. Under the new stimulus bill, the feds are adding $300 per week to state unemployment payments for 11 weeks, through March 14, 2021. The new bill includes a return to work reporting requirement, meaning that the states must allow employers to report when a worker refuses an offer to return to his/her job without good cause.

If you were one of the few employers who deferred their employees’ payroll taxes from September – December 2020 under President Trump’s vague Executive Order issued in August, you will now have to increase their withholding to pay back those deferred amounts. Your employees have until the end of 2021 to get those amounts repaid. The December stimulus bill extended that deadline from April 30, 2021 to December 31, 2021. Some employees were hoping for complete forgiveness of these deferred taxes, but alas, an extended time to repay was all they received.

Finally, employers may be happy to learn that business meal deductions have returned to their previous 100% level for 2021 and 2022. So once this pandemic has subsided, you can fully deduct your celebratory meals with your clients.

What did the new stimulus bill not do?

  • There will be no $2000 per person stimulus checks. The $600 check is it, and it phases out at higher incomes.
  • Liability protections for businesses from lawsuits for COVID-related injuries did not make it into the final bill.
  • Help for states and municipalities whose tax revenue has declined but who have had enormous COVID-related expenses was not approved.

Can an Employer Require COVID-19 Vaccinations of Employees?

Discrimination, Medical, Personnel Policies, Termination, , , , ,

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? →