The 87th Texas Legislative Session wrapped up on May 31, 2021, and unless a special session is called, the next session will not begin until January 10, 2023.  While there were several interesting and important bills that were passed or failed in the final minutes of the Session, in this article we are going to look at the two bills that most impact a workplace.  Specifically, Texas Senate Bills 968 and 45.

Texas Senate Bill 968.

Texas Senate Bill 968, also known as the “Anti-Vaccination Passport” Law, was signed into law by Governor Abbott on May 7, 2021.  SB 968 bans government-issued “vaccine passports” (i.e., proof of vaccination) for non-healthcare related purposes.  So, what does SB 968 mean for employers?  Does SB 968 prevent an employer from requiring employees to show proof of vaccination?  Well, the short answer is “no”.

Instead, SB 968 restricts businesses from requiring customers to show proof of vaccination before allowing them on their premises, but it does not contain restrictions for employees.  Specifically, the Bill states: “A business in this state may not require a customer to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business.”

Businesses that fail to comply with SB 968 are subject to losing state funding, grants, and any licenses or permits needed to operate within the State.

That means that at this point, employers’ main guidance for employee related COVID-19 questions comes from the EEOC.  As we addressed in a recent article, the EEOC’s updated guidance and FAQs advise that federal anti-discrimination laws do not prohibit employers from requiring COVID-19 vaccinations for any employees physically entering the workplace nor do they prohibit offering employees incentives to take the COVID-19 vaccine or educating employees about its benefits.

Although this may be a relief for many employers, others likely have serious concerns, such as the travel industries as it relates to their customers.

Texas Senate Bill 45.

Texas Senate Bill 45 contains a relatively short provision that was added in Chapter 21 of the Texas Labor Code, the Chapter on Employment Discrimination.  Currently, the Texas Commission on Human Rights Act (“TCHRA”) mirrors the Civil Rights Act of 1964 and various other laws, including the Pregnancy Discrimination Act.  The TCHRA prohibits discrimination in employment based on race, color, disability, religion, sex (including pregnancy, childbirth, and related medical conditions), national origin, or age (40 years of age or older) (TX Labor Code Sec. 21.001 et seq.).  The TCHRA applies to all public employers, including elected officials, and private employers, including labor unions and employment agencies, with 15 or more employees.  The law does not apply to out-of-state employees of Texas-based companies.

Texas SB 45, which was signed into law on May 30, 2021, amends Chapter 21 by adding a new Subchapter to Chapter 21, titled “Sexual Harassment”.  On the federal level, sexual harassment is considered a form of sex-based discrimination under Title VII of the Civil Rights Act of 1964.  However, the new Texas law removes sexual harassment from the realm of “discrimination”, and creates a separate sub-chapter that applies to all employers who “employs one or more employees”.   That’s right, this new addition is not limited to employers with 15 or more employees, this one applies to an employer with any employees.

SB 45 has a thorough definition of sexual harassment, but what I find most interesting is Section 21.142, titled “Unlawful Employment Practice,” which states:

An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors:

(1)  know or should have known that the conduct constituting sexual harassment was occurring; and

(2)  fail to take immediate and appropriate corrective action.

Yes, you read that correctly, the term is “immediate”.  Before SB 45 was signed into law, as far as I am aware, the “immediate” standard only applied in one other situation under Chapter 21, which is Section 21.1065 – Sexual Harassment Protections for Unpaid Interns.  Some quick research showed me that Section 21.1065 is only cited or referenced in one published opinion, which came from a court in Austin in 2020.

With that, it is likely that in the near future we will some courts grappling with the definition of “immediate”. Although I cannot currently accurately define that term, we will keep a close eye on it to keep you apprised of developments.