Monday evening, Texas Governor Greg Abbott made headlines by issuing an executive order broadening the scope of individuals who can opt-out of any employer vaccine mandate, making it only the second state to take action related to COVID-19 vaccinations.
Executive Order GA-40 prohibits all entities from compelling any employee or consumer within the state of Texas to get a COVID-19 vaccine who objects because of (1) personal conscience; (2) religious belief; or (3) medical reasons, including prior recovery from COVID-19. Failure to comply with the order may result in a fine of the “maximum [amount] allowed under Section 418.173 of the Texas Government Code,” which is $1,000. However that penalty is likely to be enforced on a "per employee" basis.
Although the order does not define what constitutes an objection based on “personal conscience,” the fact that it is listed as an exemption separate from religious beliefs indicates that the order likely intends to provide an exemption from employer vaccine mandates to individuals who oppose getting vaccinated against COVID-19 for political reasons or safety concerns. Additionally, the order’s use of the term “medical reasons” implies that it would provide an exemption from mandatory vaccination for individuals not just with current disabilities or medical conditions but for other medical reasons as well, including employees who do not want to get the COVID-19 because they recovered from a prior COVID-19 infection or employees who are fearful of potential future side effects or health complications from the COVID-19 vaccination.
In practice, GA-40 is not an across-the-board ban on employer vaccine mandates. Instead, the order purports to expand the scope of those who can “opt out” of employer vaccine mandates beyond the current exceptions to vaccine mandates for (1) sincerely held religious beliefs and (2) disability-based reasonable accommodations recognized under current Equal Employment Opportunity Commission (EEOC) guidance.
Private Texas employers with more than 100 employees who have been preparing to comply with OSHA’s much-anticipated emergency rule mandating that employers with at least 100 employees require their workforce to be vaccinated may be able to comply with both the Texas executive order and the forthcoming OSHA regulations so long as they allow anyone who falls into any of the three exceptions identified in the order the option of producing a negative COVID-19 test every week.
On the other hand, there appear to be strong arguments that President Biden’s Executive Order on Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors would preempt the Texas executive order as it applies to federal contractors. This would mean that employees of federal contractors likely cannot avoid the federal vaccine mandate for reasons of personal conscience (unless it is considered a sincerely held religious belief) and any medical reason other than a disability-based reasonable accommodation.
We expect there likely will be litigation (and possibly further guidance) to determine whether the Texas executive order is preempted by the federal contractor executive order or the OSHA rule, once finalized. However, in the meantime, employers should account for the current Texas executive order’s exceptions to the anticipated federal vaccine mandate unless and until courts direct otherwise. To that end, employers should develop and fine-tune a legally defensible process for considering objections or accommodation requests that account for competing legal requirements.