Texas Governor’s Executive Order
On October 11, 2021,Texas Governor Greg Abbott issued Executive Order (EO) GA-40 which states that “no entity in Texas can compel receipt of a COVID-19 vaccination by any individual, including an employee or 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.”
It is worth noting that EO GA-40 does not prohibit employer vaccine mandates. Rather, it broadens the criteria for exemption to such an extent that the employer is unable to compel vaccination. Prior to the EO, an employee in Texas could only be exempted from an employer’s vaccine mandate through a medical or religious accommodation. Under EO GA-40, the employer must grant an exemption if the employee objects to vaccination for a reason of personal conscience, religious belief, or medical reason which now includes prior recovery from COVID-19.
Conflict with the Biden Administration’s Executive Order
The Governor’s EO does not exclude entities that are subject to the Biden Administration’s EO 14042, issued on September 9, 2021, which requires employees of the Federal government as well as Federal Contractors and Subcontractors to be vaccinated against COVID-19. Nor did EO GA-40 address companies in the healthcare sector that are subject to vaccine requirements issued by the Centers for Medicare and Medicaid Services (CMS). The Federal EO 14042 specifically states that the order supersedes any state regulation. If you are unsure which EO to follow, we encourage you to consult with legal counsel to determine the best course of action.
Vaccine Mandates for Private Employers of 100 or More Employees
Also included in EO 14042 is a directive to the Occupational Safety and Health Administration (OSHA) to develop a new Emergency Temporary Standard (ETS) directing all private employers in the United States with 100 or more employees to impose a vaccine mandate on their workforce. The ETS would also allow regular testing as an alternative to vaccination. Although the ETS has not yet been issued, a draft was sent to the White House for review on October 13, 2021. It is expected that the order will be published and go into effect around the end of October 2021. At that time, the OSHA ETS will directly conflict with EO GA-40.
Numerous States Attorney General are already preparing challenges to OSHA’s ETS as soon as it is issued. Legal challenges are likely to slow down, and perhaps halt, implementation of the ETS. The Texas EO GA-40 also faces potential legal challenges but is expected to be codified into law in a future special session of the Texas State Legislature. That law will likely clarify areas of ambiguity or contradictions with Federal laws and agency mandates.
Unless you are a Federal Contractor or Subcontractor, you should adhere to EO GA-40 and implement the required exemptions.
If you are a Federal Contractor or Subcontractor, you are not required to implement a mandatory COVID-19 vaccination program until an existing contract is updated with the appropriate clause or you accept a new contract after October 15 that contains the vaccine mandate requirement. An existing contract can only be updated through a bilateral agreement, so you will not be required to implement a vaccine mandate without your prior acknowledgement and consent. If you’re unsure which EO to follow, seek legal counsel.
When the OSHA ETS is issued, expect legal challenges, but you should still begin preparations for compliance. This includes surveying your employees to obtain the vaccination status of your workforce to prepare for the logistics of implementing a vaccine mandate, as well as forecast and prepare for potential business disruptions due to loss of employees that refuse the vaccine.
Perhaps most importantly, remain flexible. Every law, executive order, and agency mandate is subject to lawsuits and injunctions. Expect the tumultuous legal landscape to continue through the final quarter of this year and into 2022. The road ahead promises to be full of twists and turns and may even be a bit harrowing at times. Just remember that if you’re calm, your employees will be calm.