Texas AG: school districts likely cannot offer special treatment to vaccinated staff

AUSTIN — In a 2021-22 school year policy, Houston ISD offered a maximum of 10 additional paid sick days for staffers who were fully vaccinated and those who had medical exemptions should they contract COVID-19, while unvaccinated staff must use their personal leave should they test positive.

Texas Attorney General Ken Paxton said in an opinion released Thursday that the policy was likely a violation of state law.

“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 COVID-19 paid leave policy violates Executive Order GA-39,” the opinion read.

In June, a law banning governmental entities from issuing vaccine passports, passes or other standardized documentation to certify vaccine status was solidified. Gov. Greg Abbott doubled down on the idea with an executive order signed in August that stated governmental entities cannot compel any individual to receive a COVID-19 vaccine.

Sen. Paul Bettencourt, R-Houston, who initiated the request for AG review said in a letter that he believed the HISD policy was an attempt at a vaccine passport, in conflict with the governor’s executive order and a violation of employees' medical privacy rights.

“For these reasons, and others, I believe the discriminatory vaccine leave policy under consideration by HISD and pending TEA approval is questionable in legality,” the letter said. Given that the source of HISD funding includes property tax revenue, and other state and federal funds, the public has a clear interest in ensuring that the use of those funds comports with Texas law.”

The AG’s office agreed with Bettencourt’s statements saying any standard documentation that certifies an individual’s COVID-19 vaccination status constitutes a “vaccine passport.”

The opinion added that HISD is a covered entity under the Texas Medical Records and Privacy Act 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,” it said.