Texas Passes Bill Prohibiting Businesses From Requiring Vaccine Passports for Customers, But Not Employees

On June 7, 2021, Texas Gov. Greg Abbott continued to emphasize that Texas is open for business by signing into law S.B. 968, which prohibits Texas businesses from requiring customers to provide documentation of COVID-19 vaccination — including through the use of “vaccine passports” — to gain access to or receive service from the business. The law went into effect immediately and specifically prohibits Texas businesses from requiring that customers “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.” The penalty for failure to comply with the law may be significant, as Texas businesses that fail to comply are not eligible to receive state grants or enter into contracts with the state.

Texas businesses may be wondering what effect S.B. 968 may have on their ability to require employees to be vaccinated or to utilize “vaccine passports” for return of employees to work. As noted above, the language of the bill limits its applicability to customers and does not address the employee-employer relationship. Moreover, the bill expressly provides that it may not be construed as “restrict[ing] a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health.”

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on the COVID-19 vaccine and explained that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” The updated EEOC guidance also confirmed that the laws do not prohibit employers from requiring employees to bring in documentation or other confirmation of vaccination status, so long as the information is kept confidential in accordance with the ADA. Thus, while Texas businesses may not require proof of vaccination from customers, Texas employers may still require employees to get vaccinated and provide proof of vaccination before returning to work, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.