After more than a year since the Covid-19 pandemic struck, many of us are finding that as we return to work, things are slightly off from what they once were. Several employers are requiring facemasks, social distancing, and heightened sanitation, to name just a few. And all for good cause as well. Employers want their employees returning to work, but presumably want to prevent the spread of the virus as well. In light of this, several employers are now requiring that their employees receive the vaccination. Employers are approaching vaccination requirements by several means, the most common being the consequential approach (i.e., unvaccinated employees will suffer unpaid leave, suspension, termination, etc.) and the incentivization approach (i.e., vaccinated employees do not need to wear masks or social distance). These new requirements all raise an important question: can your employer require you to get a vaccine? The short answer: Yes, they certainly may.

At first glance, this issue can be quite unsettling. How can it be just for employers to dictate your medical decisions? However, employers have a significant amount of discretion in setting up the workplace environment. This is largely due to the fact that Texas is an at-will state. In other words, under Texas law, your employer has plenty of leeway in making workplace policy. For example, should your employer decide that, starting next week, everyone in the office is required to wear pink dress-shirts with electric blue ties, then you better show up on Monday wearing a pink dress shirt and an electric blue tie. Otherwise, your employer will have grounds to terminate you. As absurd as this sounds, this pink-shirt policy is completely valid under Texas law. Similarly, employers have discretion to require that employees receive vaccinations, particularly the Covid-19 vaccine. 

We should, however, dispel a popular rumor underlying vaccination requirements. This rumor being that employers cannot require the vaccine because it is not “FDA approved.” Legally, this simply does not matter. The FDA authorized the use of these vaccines, therefore employers are allowed to require it. The fact that the vaccine has not been FDA approved is irrelevant (to those skeptical of this claim, it should be noted that Pfizer did apply for full FDA approval roughly a month ago).

Furthermore, the Equal Employment Opportunity Commission (“EEOC”) released guidance this previous week asserting that companies can require employees to be vaccinated. The EEOC further posited that companies may offer incentives to workers as long as they are not coercive. The EEOC, however, did not elaborate on what would constitute a “coercive” incentive. The only caveat to the EEOC’s guidance is that the employer may require the vaccination so long as they are in accordance with the reasonable accommodations provision of the Americans with Disabilities Act. In other words, your employer cannot make you receive a vaccination if it would in some way be detrimental to your health. For example, suppose you suffer from a serious auto-immune disease and your doctor recommends, for the sake of your health, that you do not get the vaccine. In this instance, you should notify your employer of your ailment, provide them with the necessary paperwork, and request that they accommodate your disability so that you do not need to obtain the vaccine and jeopardize your health. Again, the burden is on you to show your employer that the vaccine is detrimental to your health.

This news should not come as a surprise as this would not be the first time vaccinations are mandated. In fact, several establishments typically require vaccinations. For example, public and private universities in Texas typically require students to show records that they have received their meningitis shots prior to registering for classes. As counter-intuitive as it may seem to some, refusing a vaccination, outside of valid medical grounds, is not protected activity. In other words, you will not be protected by the law should you refuse.

For those concerned about the possibility that their employer may require them to get the vaccine, there is not too much cause to worry. It has been found that a significant majority of companies in the United States are not even considering requiring the vaccine. Chances are, you most likely will not be required by your employer to receive the vaccine. For health purposes, however, you may want to consider the option nonetheless. We are living in the new normal, and these circumstances demand that we contain the spread of the virus. So what happens when your employer requires you to receive the vaccine? You either bite the bullet and get it or risk a fight that is all but lost. 

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Photo of Marcos De Hoyos Marcos De Hoyos

We asked Marcos D. De Hoyos, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions. After reading, you will be more more abreast with the understanding and competency that Mr.

We asked Marcos D. De Hoyos, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions. After reading, you will be more more abreast with the understanding and competency that Mr. De Hoyos brings.

  1. Why did you start practicing labor and employment law?

It’s fulfilling work. Employment law is one of the few areas of law where you can actually make a difference and an impact in the lives of people. One of the most rewarding feelings is knowing that the work I do each day has a meaningful impact in the community.

  1. Who is your favorite Supreme Court Justice?

Justice Oliver Wendall Holmes, Jr.

  1. What do you think is the most important part of a good case?

The lawyer. The client could have a stellar case, but without a good lawyer, that case isn’t going anywhere. You need a passionate, active, and knowledgeable lawyer to make the right decisions and ensure that the case, regardless of how viable it is, gets the shot it deserves.

  1. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

While in college, I was a barista at a small, local coffeeshop, so while I argue your case, I can also make you a killer shot of espresso to boot.

  1. What skills do you value as an employment attorney?

The ability to adapt. As a lawyer, you’re constantly faced with situations that you didn’t expect or anticipate, and you have to learn to adapt to the situation as it unfolds. Persuasiveness and attentiveness are also a few skills I think are important to being successful in law.

  1. If you were not practicing labor and employment law what would you be?

In another life, I would most likely be an English or Philosophy professor.

  1. How do you market yourself differently than others?

I did not have the privilege of growing up in a family of lawyers. I was the only person in my family to earn a law degree, and I had to learn the law tooth and nail. I understand how complicated and daunting the law can be to someone who hasn’t studied it, so along with providing advocacy, I also like to make sure that clients understand the law, so that they aren’t left tackling their problems in the dark.

  1. What do you do when you’re not practicing law?

You can usually find me reading fiction or philosophy at the local coffee shop, going for a hike or run, or touring one of the many museums or art galleries in town.

  1. What’s your favorite legal TV show

Harvey Birdman, Attorney at Law.

  1. Who do you most admire as a lawyer?

The client. Taking on big companies and corporations is daunting, especially when you haven’t studied law. It takes courage to take a stand and to fight for what you are owed. I really admire that about my clients. They know going in that it’s going to be tough, but they choose to fight anyway, and that takes guts.

Marcos D. De Hoyos is a Trial Attorney in the Houston office of Wiley Wheeler, P.C. He graduated from Texas A&M University with a Bachelor of Arts degree in Political Science and Philosophy with a Minor in English. Mr. De Hoyos went on and received his law degree from Vanderbilt University.