State Efforts to Require or Ban Vaccine Mandates Raise Conflicting Legal Issues

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With OSHA’s Emergency Temporary Standard requiring COVID-19 vaccinations for employers with 100 or more employees to be released shortly, a number of states have begun efforts to counter such mandates, or place additional vaccination requirements on certain employers.

In Texas, Governor Gregg Abbott issued an executive order prohibiting any entity in the state from mandating vaccines. This move immediately prompted questions over its compatibility with federal law. Both the OSHA ETS and recent orders affecting federal contractors are in direct conflict with this state order. Given that federal law supersedes state laws in most circumstances, several large Texas federal contractors announced their intent to disregard the state order. The state order is likely to face immediate legal challenge on federal supremacy and other grounds.

At the other end of the political spectrum, earlier this week, a federal judge in New York concluded that the state’s mandatory vaccination order for healthcare employees conflicted with federal law because it failed to include measures for accommodating employees with religious objections to the vaccine. New York indicated its intent to appeal this decision.

These controversies are likely only the tip of the iceberg in terms of a series of state measures and resulting lawsuits. When combined with the federal OSHA ETS, this will likely result in a messy and shifting patchwork of vaccine mandates and prohibitions that employers will need to navigate through.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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