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COVID-19 Vaccination Issues and Mask Mandate Updates

The CDC’s decision to ease mask guidelines for fullly vaccinated people has led to a number of questions that Texans have regarding mask policies and medical privacy in the workplace and beyond.  it is important to emphasize that the CDC’s guidance is simply advisory and does not overrule federal, state, local, tribal or territorial laws, rules, and regulations, including local business and workplace guidance. This article explores many of these questions and issues.

Can a Texas city or county impose a mask mandate?

Starting May 21, 2021, any Texas government entity (cites and counties) that tries to impose a mask mandate can face a fine of up to $1,000, according to the governor's new executive order. The order exempts state supported living centers, government-owned or operated hospitals, Texas Department of Criminal Justice facilities, Texas Juvenile Justice Department facilities, and county and municipal jails.

 

Can Texas public schools require masks be worn?

On May 18, 2021, Governor Greg Abbott announced that public schools can no longer require masks on their campuses starting June 5. The decision was part of a new executive order that bans government entities in Texas — like cities and counties — from mandating masks. After June 4, "no student, teacher, parent, or other staff member or visitor may be required to wear a face covering," according to the govenror's order.

 

Can government agencies in Texas create "vaccine passport" requirements?

A vaccine passport is proof that you’ve tested negative for or been protected against certain infections, like COVID-19. It can be digital, like a phone app, or physical, such as a small paper card.  On April 6, 2021, Governor Abbott issued an Executive Order prohibiting state agencies or political subdivisions in Texas from creating a "vaccine passport" requirement, or otherwise conditioning receipt of services on an individual’s COVID-19 vaccination status. The order also prohibits organizations receiving public funds from requiring consumers to provide documentation of vaccine status in order to receive any service or enter any place. Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities may still "require documentation of a resident's vaccination status for any COVID-19 vaccine." At this time, the federal government has not set up or indicated that it will set up a vaccine passport.

 

Can Texas businesses require vaccination proof from customers?

Texas businesses that require customers to be vaccinated against COVID-19 will be denied state contracts and could lose their licenses or operating permits under legislation Gov. Greg Abbott signed into law Monday June 7, 2021. The new law includes a clause banning businesses from requiring proof of the vaccine from their customers. Those that violate the ban may not contract with the state, and state agencies that oversee various sectors of business may decide to make compliance with the state law a condition of getting licensed or permitted. Businesses may still implement “COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health,” according to the new law, which goes into effect immediately.

 

Is it a HIPAA violation to ask if someone is vaccinated?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created a national standard to protect a patient’s health information from being shared without consent. It’s important to remember that HIPAA only applies to healthcare entities.  Businesses that are not in the healthcare industry are not bound by HIPAA. That means it’s not a HIPAA violation for most places, including restaurants, travel providers and retail stores, to ask for proof that you have been vaccinated. It does not mean you have to provide that information though. Read more here.

 

Can an employer ask an employee if they are vaccinated and, if so, to provide proof?

Generally yes. Businesses can require their employees to get a COVID-19 vaccine, according to guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC's COVID-19 guidance provides that asking for proof of an employee's vaccinated status is not a disability-related inquiry and is permitted under federal disabiltiy discrimination law. However, the EEOC cautions that asking an employee about the reasons for declining vaccination could require the employee to reveal information about a disability. In addition, employers may offer incentives to workers to be vaccinated, as long as they are not coercive. Thus, the employer would need to demonstrate that such questions were "job-related and consistent with business necessity." The EEOC recommends that employers warn employees not to provide any medical information as part of the proof of vaccination.

Read What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

 

Disability Rights Texas Resource: Mask Policies in Stores and Other Private Businesses

During the pandemic, many businesses require people to wear masks. A lot of people with disabilities have a higher risk for serious illness if they get COVID-19. For them, requiring masks is very important. For others, wearing a mask may be hard because of a disability. Disability Rights Texas has created this handout answering some of the questions regarding disability laws like the Americans with Disabilities Act (ADA), and how they apply to mask policies.

 

Can my employer treat me differently from my vaccinated co-workers?

The Occupational Safety and Health Agency (“OSHA”) Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace provides that employers should not distinguish between workers who are vaccinated and those who are not vaccinated when implementing and enforcing COVID-19 safety policies. While OSHA’s guidance may change in the near future, employers should be aware that OSHA’s position remains that employees “who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant.” However, OSHA is in the process of reviewing the recent CDC guidance and plans to update its guidance accordingly in the near future. In the meantime, OSHA instructs employers to refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.

Additional Resources

  • The Texas State Law Library has compiled information on COVID-19 and medical privacy here.

 

  • The Texas State Law Library has compiled information on COVID-19 and mask rules here.