On April 14, Texas Attorney General Ken Paxton issued a formal legal opinion on a Texas school district’s COVID-19 sick-leave guidelines. Houston ISD instituted a new policy for the 2021-22 school year, in which vaccinated staffers who contract COVID-19 are given an additional 10 paid sick days, while unvaccinated staffers who get COVID-19 must use their own sick days.
The HISD Board of Education voted to approve the policy on August 19, 2021. The policy exempts those who are medically unable to be vaccinated or who meet religious exceptions.
Paxton’s formal legal opinion states that a court may rule the policy violates an executive order.
“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.
On August 25, 2021, Governor Greg Abbott issued Executive Order GA-39, which prohibits state agencies and political subdivisions from requiring any documentation regarding a person’s COVID-19 vaccination status for entry or services for any purpose other than for health care. The order was more generally understood to prohibit “vaccine passports.”
Paxton argues that HISD has no health care purpose for requiring proof of vaccination.
“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,” Paxton wrote. “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.”
Paxton’s legal opinion has been long-awaited since August 26, 2021, when Texas State Senator Paul Bettencourt (R-Houston) issued a formal request to Paxton for his legal opinion on the policy. Bettencourt argued that the HISD policy constituted an attempt at a “vaccine passport.”
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.”
“For these reasons, and others, I believe the discriminatory vaccine leave policy under consideration by HISD and pending TEA approval is questionable in legality,” Bettencourt continued. “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.”
Paxton agrees with Bettencourt, saying that “any standard documentation that certifies an individual’s COVID-19 vaccination status constitutes a ‘vaccine passport.'”
It remains to be seen if a court will look at the policy’s legality. Paxton’s formal legal opinion has no real bearing on the law. Instead, it is a “written document in which an attorney provides his or her understanding of the law as applied to assumed facts,” USLegal writes.
