As Texas GOP wages war on COVID-19 mandates, lawmakers OK bill that would make companies requiring the shot vulnerable to lawsuits

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As Gov. Greg Abbott and other Republican Texas leaders wage a war against vaccination mandates meant to curb COVID-19, a state Senate committee on Thursday advanced legislation that would make any entity, including hospitals, vulnerable to discrimination lawsuits if they mandated vaccinations for all employees.

The Senate State Affairs Committee’s vote 5-1 to advance Senate Bill 51 comes over the objections of medical and business advocacy groups, who pushed back against the legislation. They warned lawmakers of its risks to small businesses, workplaces that rely on federal funding and immunocompromised Texans.

It was the second legislative hearing in as many days in which business groups and medical leaders urged the Legislature to let individual companies decide whether they require employees to be vaccinated. Abbott asked lawmakers this week to take up the issue to ensure Texans aren’t required to get vaccinated, saying that vaccines are “safe, effective, & our best defense against the virus, but should always remain voluntary & never forced.”

Abbott, who faces reelection next year, has long been criticized from both his left and his right over how he’s overseen the state’s response to the deadly pandemic. Earlier this week he banned private companies from mandating that employees or customers be vaccinated against COVID-19, four weeks after Democratic President Joe Biden announced that federal contractors must have all employees vaccinated against COVID-19 and that businesses with more than 100 employees must mandate vaccination against the virus or require regular testing.

Abbott also is in several legal fights with cities, counties and school districts over local mask orders that defy his ban on such orders. Texas’ ban on masks in schools has drawn a federal investigation for possibly violating the rights of students with disabilities.

At Thursday’s Senate committee hearing, representatives from the American Cancer Society, the Texas Medical Association and the Texas Pediatric Association opposed SB 51 and asked lawmakers to exempt health care entities from the law’s reach.

Advocates from medical facilities like nursing homes worried about losing Medicare and Medicaid reimbursements if the state law goes into effect, preventing them from following pending federal rules that will mandate vaccines.

“The state shouldn’t be mandating a one-size-fits-all approach to hospitals,” said Steve Wohleb, senior vice president and general counsel for the Texas Hospital Association. “It should leave those decisions to the hospitals, who are in the best position to know what’s best for their patients.”

Josh Houston, advocacy director for the interfaith group Texas Impact, spoke out against the bill, saying it was an example of the state involving itself in decisions that should be left to individual religious institutions.

“Our members sincerely believe that vaccines save human life,” he said.

Annie Spilman, state director at the National Federation of Independent Business, spoke along with other business representatives on worries about the bill’s impacts to small businesses.

“We're not arguing the merits of vaccination, good or bad, here,” Spilman said. “You could fill in the blank on the subject matter — if it creates a cause of action, or any sort of adverse action against a small business employer who already operates on thin margins, we’re generally going to oppose it.”

On Wednesday, a House bill that would expand the exemptions that employees could cite to avoid employers’ vaccine mandates was the focus of heated debate in the House State Affairs Committee — which adjourned without voting on House Bill 155 by state Rep. Tom Oliverson, R-Cypress.

The bill would allow Texans to opt out of employers’ vaccine mandates for reasons of conscience, including a religious belief, and for “acquired immunity” through previously contracting COVID-19. There is not definitive research on how long natural immunity lasts, and many scientists, doctors and infectious disease experts recommend that people who have had the virus still get vaccinated as long as it’s been 90 days since they recovered.

HB 155 also would give employees the ability to bring legal action against employers if they believe their employer violates any of the exemptions.

Advocacy groups including the Texas Association of Business, Texans for Lawsuit Reform, the Texas Hospital Association and the Texas Assisted Living Association opposed HB 155 in Wednesday’s hearing.

Glenn Hamer, president of the Texas Association of Business, said his group’s “big-time concern” is the legal action that could come as a result of the bill.

Lee Parsley, general counsel with Texans for Lawsuit Reform, told lawmakers they have no way of getting around the federal rules issued by the Biden administration. Beginning as soon as Friday, businesses entering into contract work with the federal government will need to have all employees vaccinated. Nursing homes and any Medicare- and Medicaid-certified health care facility will also have to get all staff vaccinated in order to continue participating in the federal programs.

“I'm afraid you're up against federal preemption,” Parsley told lawmakers on the House committee. “No matter what you pass, the federal law has preempted it.”

Wohleb, of the Texas Hospital Association, said the legislation could “be devastating. Hospitals rely heavily on Medicare and Medicaid funding. It would effectively shut every hospital down if they could not comply with that particular requirement.”

Several individuals testified in support of HB 155, saying they felt the vaccine mandates were an overreach and expressing fears about potential side effects, although experts widely agree that the vaccine is safe.

“I just think privacy to protect your personal decision on if you want to take a vaccine or not take a vaccine is your choice,” said Joanna McCurry, who started out speaking against the legislation but then changed her mind.

Dawn Richardson, the director of advocacy for the National Vaccine Information Center, testified against the bill but said she supports its concept. She said it comes too late because many Texans have already been fired for not being vaccinated.

“There are so many companies, big companies that are mandating the vaccine,” she said.

After the House panel testimony, Oliverson said he would change the bill’s enforcement mechanisms to protect small businesses from heavy penalties and lawsuits.

He also said he would work with the health care community to address the way unvaccinated workers in hospitals could expose immunocompromised patients to the virus, but did not provide details on how he would solve this issue.

Kailyn Rhone contributed to this story.

Disclosure: Texans for Lawsuit Reform, Texas Association of Business, Texas Hospital Association and Texas Medical Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.