HOUSTON - Attorney General Ken Paxton issued an opinion today stating that 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.
On Aug. 25, 2021, Gov. Greg Abbott issued Executive Order GA-39, which expressly prohibits state agencies and political subdivisions from requiring any documentation regarding a person’s COVID-19 vaccination status for entry or services.
The opinion request, which was submitted by Sen. Paul Bettencourt, District 7, on Aug. 26, 2021 – a day after the executive order was issued – asks whether a school district may implement a policy making additional leave available to employees who are vaccinated for COVID-19 or medically exempt from the vaccination.
A week earlier, on Aug. 19, 2021, the HISD Board of Education voted to approve up to 10 days of paid leave for the 2021-2022 school year for employees who are fully vaccinated, medically unable to be vaccinated or who meet religious exceptions.
In his opinion request, Bettencourt wrote that HISD’s policy, “on its face, would intentionally discriminate against employees based on their COVID-19 vaccine status by providing select employees an additional benefit for the same work.”
The request also asked Paxton to determine whether the policy constitutes a "vaccine passport" and violates HISD employees' medical privacy rights.
Paxton concluded that any standard documentation that certifies an individual’s COVID-19 vaccination status constitutes a “vaccine passport” under the Health and Safety Code, and that a person’s vaccination status likely falls within the definition of “protected health information” under the Health Insurance Portability and Accountability Act.
Opinion No. KP-0403