On October 11, 2021, and immediately effective, Texas Governor Greg Abbott issued an executive order (No. GA-40) prohibiting any entity in Texas from compelling receipt of a COVID-19 vaccination by any individual, including an employee or consumer, who objects to the vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19. The governor further signaled in the preamble to the order that the executive order will be rescinded if a related state law is enacted.
The order also establishes a maximum criminal penalty of $1,000 but expressly excludes confinement as a penalty.
How Will This Law Work Federal Vaccine Mandates?
It is clear that this law would be conflicting for employers who are federal contractors or subcontractors subject to the requirements under President Joe Biden’s Path Out of the Pandemic plan, which requires federal contractors to be vaccinated by December 8. It should also be noted that Texas is under federal OSHA jurisdiction which covers most private sector workers within the state and this may also end up in conflict, the OSHA COVID-19 Vaccination and Testing ETS, which requires employers with 100 or more employees to show proof of being fully vaccinated or provide a weekly negative COVID-19 test.
Texas now joins Montana as one of only two states with current executive orders or laws prohibiting a private employer’s right to mandate COVID-19 vaccination of employees. Other states are taking similar action, and this will certainly make it harder for employers to comply with both federal and state law.
Read more about the executive order and future intent of the law from the governor’s press release.
Next Steps for Employers
The US Constitution provides that federal rules will generally pre-empt state law, but it is not usually this simple. This being said, the current federal rule is not applicable to all employers, so employers will need to carefully exam each law and its impact on their workforce. For example, the ETS will not cover employers with less than 100 employees, and the federal contractor rules do not apply to all private employers, meaning Texas employers not covered by the federal rules may need to comply with the governor’s order.
Employers who find themselves between federal and state laws that cannot be reconciled should consult with their legal counsel for additional guidance.