Legal Implications of Texas Governor Greg Abbott’s Ban on Vaccine Mandates
The following is an important update to our September 13 and October 5, 2021 alerts that discussed
federal vaccine mandates for employers with 100 or more employees and federal contractors and subcontractors.
On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order No. GA-40 (“EO-40”) prohibiting COVID-19 vaccine mandates by any entity in Texas. Effective immediately, EO-40 states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Violation of EO-40 is subject to a $1,000 penalty for “any ‘failure to comply with’” the order. Further, by its express language, EO-40 supersedes any conflicting local order.
How Executive Order No. GA-40 Affects Employers
EO-40 prohibits employers from requiring COVID-19 vaccines if an employee objects based on: (1) “any reason of personal conscience” (an undefined term), (2) “a religious belief,” or (3) “for medical reasons.” Thus, while employers were already required to offer reasonable vaccine accommodations for valid religious and medical reasons under Title VII of the Civil Rights Act and Americans with Disabilities Act if such an accommodation would not pose an undue hardship on the employer, EO-40 outright prohibits vaccine mandates based on employee objection alone.
EO-40 was issued in direct response to President Joe Biden’s vaccine mandate plan, which was set forth in his September 9, 2021, Path Out of the Pandemic: COVID-19 Action Plan (the “Action Plan”) and issuance of Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (“EO-14042”). The Action Plan directed the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop an Emergency Temporary Standard (the “Emergency Temporary Standard”) that would require private sector employers with 100 or more employees to ensure their workers are fully vaccinated or have tested negative for COVID-19 on a weekly basis. Separately, EO-14042 requires employees of workplace locations with individuals working on or in connection with a covered Federal Government contract or contract-like instrument be fully vaccinated by December 8, 2021.
Conflicting Federal and State Executive Orders
EO-14042 is currently in effect. Unlike the forthcoming OSHA Emergency Temporary Standard, EO-14042 does not provide an alternative for weekly COVID-19 testing; instead, full vaccination status is required. Thus, EO-14042 directly conflicts with EO-40’s prohibition against vaccine mandates. Texas employers that are covered federal contractors or subcontractors under the definitions set forth in EO-14042 and its related guidance immediately face conflicting federal and state executive orders. While we anticipate that this conflict will ultimately be addressed in court, in the meantime, federal contractors and subcontractors should discuss the state mandate ban and compliance issues with their Contracting Officer.
For Texas employers that are not covered federal contractors or subcontractors, the situation is different, at least temporarily. OSHA has not yet published its Emergency Temporary Standard that affects private sector employers with 100 or more employees, and, therefore, it is not currently in effect. However, on Tuesday, October 12, 2021, OSHA sent its proposed rule to the White House for approval. Once the Emergency Temporary Standard is approved, which could occur in as little as one day, it could take effect immediately. Until then, Texas private sector employers with 100 or more employees do not face conflicting federal and state rules. Thus, these employers may want to consider suspending their mandatory vaccine programs to comply with EO-40 until there is more clarity from the courts as to whether EO-40 is a valid order. Once the Emergency Temporary Standard is in effect, Texas employers will face a dilemma similar to Texas federal contractors and subcontractors, with one notable exception: Employers will likely be able to satisfy both the Emergency Temporary Standard and EO-40 by implementing weekly testing for unvaccinated employees, rather than requiring vaccines.
EO-14042 and the forthcoming Emergency Temporary Standard do not cover Texas employers that have less than 100 employees and are not federal contractors or subcontractors. Such employers are subject to EO-40’s vaccine mandate ban.
As detailed above, Governor Greg Abbott’s EO-40 directly conflicts with EO-14042 and will likely conflict with the forthcoming OSHA Emergency Temporary Standard. We expect that EO-40 will quickly be challenged in court based on issues such as federal preemption, and that more clarity regarding the interplay of EO-40 and the conflicting federal rules will develop by way of a court order, or guidance from the state or federal government. We will continue to keep you updated on all developments as they unfold.
Porter Hedges Alerts and News
On September 13, 2021, Porter Hedges published its first email alert in a series of upcoming articles discussing federal requirements for COVID-19 vaccines and testing in the workplace – U.S. Department of Labor Issues Vaccine Mandate – What’s Next for Employers? We addressed one of the Action Plan’s six prongs: OSHA’s forthcoming Emergency Temporary Standard that will require all private sector companies with 100 or more employees to require their employees be fully vaccinated or undergo weekly testing for COVID-19. Porter Hedges presented a webinar on the same issue. To receive a recording of the webinar, please contact us.
On October 5, 2021, Porter Hedges published its second email alert in the series – Vaccination Mandates for Federal Contractors and Subcontractors. The alert addressed a second prong of the Action Plan: The Safer Federal Workforce Task Force’s Guidance, under Executive Order 14042, that requires employees of workplace locations with individuals working on or in connection with a covered Federal Government contract or contract-like instrument be fully vaccinated by December 8, 2021.