Note: Included opinions are from April 11, 2022 through May 10, 2022.
KP-403 (Vaccines and School District Employees): A court would likely conclude that, by offering additional paid leave only to those employees showing proof of COVID-19 vaccination or a medical exemption, the Houston Independent School District’s (HISD) COVID-19 paid leave policy violates Executive Order GA-39.
Any standard documentation that certifies an individual’s COVID-19 vaccination status constitutes a “vaccine passport” under subsection 161.0085(b) of the Health and Safety Code. Subsection 161.0085(b) does not permit a government entity to issue nor share standard documentation that certifies an individual’s COVID-19 vaccination status for any purpose other than for health care. Sharing information for an employment matter (or any other nonhealth care related purpose) would not be permitted under this statute. As written, subsection 161.0085(c) clearly prohibits a business from requiring submission of such documentation from a customer. The statute is silent as to whether a governmental entity may, or may not, require submission of such information.
HISD is not a covered entity under the federal Health Insurance Portability and Accountability Act; however, a person’s vaccination status likely falls within the definition of “protected health information” under this federal statute.
HISD is a covered entity under the Texas Medical Records and Privacy Act (TMRPA) and must comply with its provisions. Any information related to the vaccination status of an employee would be covered as “protected health information” under the TMRPA (as the statute adopts the federal definition) and treated accordingly.
KP-405 (Distribution of Coronavirus Relief Funds): In the 2020 Coronavirus Relief Fund (“CRF”), the U.S. Congress appropriated $150 billion to assist states, territories and tribal governments, and certain local governments to fund necessary but unbudgeted expenditures the governments incurred because of the COVID-19 public health emergency. Texas cities and counties with populations exceeding 500,000 were eligible for a direct payment of CRF funds from the U.S. Treasury. The CRF did not expressly require a direct recipient to redistribute its CRF funds to local governments within its jurisdiction and did not establish a methodology by which to redistribute its CRF funds. Accordingly, we cannot conclude a particular direct recipient’s redistribution methodology is contrary to law.