What Texas Employers Need to Know About Gov. Abbott’s Executive Order on Vaccine Mandates

On October 11, 2021 Governor Abbott issued Executive Order No. GA-40 (EO GA-40) 2021(“Order”). Most of the news media is reporting that the Order prohibits private entities from mandating vaccines; however, the language of the Order actually does not impose a blanket order prohibiting vaccine mandates. The Order, which became effective immediately, states that no entity, including a private business, may “compel” any employee or consumer to “obtain” a COVID-19 vaccine if that person “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.” The Order has created confusion and many open questions for Texas employers. The Order also creates problems for federal contractors in Texas that are subject to the current administration’s requirement that all federal contractors be vaccinated by December 8.

As set forth above, the Order does not actually ban vaccine mandates. Instead, the Order provides that they must be subject to certain exemptions, which are ambiguous because of the unclear language used in the Order. The language in the Order can be interpreted in two different ways. First, it could be read as providing two grounds for exemption: “[1] for any reason of personal conscience, based on religious belief, or [2] for medical reasons, including prior recovery from COVID-19” (numerals added). Alternatively, it could be read as providing three distinct grounds for exemption: “[1] for any reason of personal conscience, [2] based on religious belief, or [3] for medical reasons, including prior recovery from COVID-19” (numerals added).

The Order also provides that “prior recovery from COVID-19” is grounds for a medical exemption from a vaccine mandate. This is not an exemption currently found in federal or state law (In fact, CDC guidance recommends vaccination for individuals even if they have had COVID-19 previously).

At the federal level, OSHA is working on an Emergency Temporary Standard (“ETS”) which are formal regulations required by President Biden’s vaccine mandate for employers with 100 or more employees. The ETS was just sent to the White House for review and should be published relatively soon. It is expected that the ETS will preempt Abbott’s Order and any law passed by the Texas legislature, but the specifics of that preemption are far from clear at this time. In addition, smaller businesses that fall below the 100-employee federal threshold would not be subject to the ETS, so they would presumably be required to comply with Abbott’s Order or potential state legislation; however, the Order and any corresponding legislation are expected to be challenged in court.

Open Questions:

What about the undue hardship defense?

Under federal law, the undue hardship exception allows an employer to deny a religious accommodation if it poses more than a minimal cost on the operations of a business, or a disability accommodation if it poses a significant difficulty or expense, or if the employee poses a direct threat to the health or safety of others. The Texas Labor Code provides similar exceptions. The Order does not address the typical employer defense of undue hardship.

What does it mean to “compel” a person to receive a COVID-19 vaccine?

Under Texas law, employers are legally able to terminate at-will employees who refuse to comply with a non-discriminatory policy, such as agreeing to drug testing. Is terminating an employee for refusing to get vaccinated “compelling” the employee to obtain the vaccine? This is not clear under the Order.

What about the Governor’s authority to issue this Order?

Does the governor even have the authority to issue this Order? This is also undetermined. Abbott’s Executive Order prohibiting mask mandates is being challenged in the courts based at least partially on the argument he does not have such authority.

How will the Order be enforced and what are the penalties?

Gov Abbott’s prior executive orders, such as EO GA-29, authorized “local law enforcement and other local officials” to issue fines for non-compliance and enforce the terms of the executive orders. Abbott’s current Order, EO GA-40, however, does not specifically authorize any state or local agency to enforce its provisions or to levy fines. It is also unclear how and to whom an allegedly aggrieved individual would report a violation of EO GA-40 and who would rule on the allegation and impose any fines. The Order does not explicitly provide a private right of action, nor does it indicate that it applies retroactively to individuals already impacted by existing vaccinate mandates. Additionally, while the Order states that failure to comply with the Order could carry a “maximum fine” of $1,000, it is unclear whether a fine would apply on a per-entity or per-aggrieved individual basis.

Is “Personal Conscience” a third possible reason to exempt someone from the vaccine requirement?

If the Order is interpreted to mean that personal conscience is a third possible exemption, employers will have to wait on the Governor, or legislation, to provide some sort of clarity or definition of what this phrase means. There is no precedent on this matter.

Where Do We Go From Here?

Many commentators are anticipating that in some instances, federal rules will preempt this Order. For example, the President’s Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” which requires covered federal contractors and subcontractors to be fully vaccinated or qualify for a medical or religious accommodation, applies even in states or localities that seek to prohibit compliance with it. Q19 of the Guidance for Federal Contractors and Subcontractors specifies, “These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”

We will continue to monitor for any additional guidance issued on the Order and monitor the progress of OSHA’s ETS on President Biden’s vaccine mandate for employers with 100 or more employers.

If you have any questions or would like more information on the issues discussed in this email, please contact any of the attorneys at Cornell Smith Mierl Brutocao Burton LLP.