As Texas Governor Bans Certain Vaccination Mandates, Conflicts May Arise with Federal Requirements Anticipated for Private Employers and Those Already in Place for Federal Contractors

NEW YORK, Oct. 12, 2021 /PRNewswire/ --

What: Texas Ban Potentially Conflicts with Federal Requirements

Why: On October 11, Texas Governor Greg Abbott issued an executive order stating 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. The order extends the governor's previous prohibition against government-mandated vaccination to private employers. It also suspends conflicting orders and statutes.

"The state executive order has the potential to conflict with federal vaccination requirements anticipated for private employers and those already in place for federal contractors. To the extent that the governor's order conflicts with federal government requirements, businesses that rely on federal funding or reimbursement, such as health care, energy, agriculture, and transportation, may be put into a difficult position?accept federal assistance or comply with the Texas order."
? Pamela Wolf, Senior Legal Analyst at Wolters Kluwer Legal & Regulatory U.S.

• Potentially Conflicting Federal Requirements: Governor Abbott's executive order comes, at least partly, in response to President Joe Biden's plan announced on September 9 to require all employers with 100 or more employees to ensure their workforces are fully vaccinated, or show a negative test at least once a week. Because the U.S. Department of Labor has not yet issued the planned emergency rule, it is unknown whether, and to what extent, that federal rule will conflict with Governor Abbott's executive order. Notably, though, President Biden's plan includes the option of requiring a negative test at least once a week for those who remain unvaccinated, an option that may alleviate any conflict with the Texas Governor's executive order.
  
  Businesses that contract with the federal government will also face difficulty because they must meet federal requirements that contractor employees be fully vaccinated no later than December 8, 2021, or on the first day of a new, renewed, or extended contract. There are accommodations under those requirements for contractor employees who are not vaccinated due to a disability or a sincerely held religious belief, practice, or observance. However, there is no exception to mandatory vaccination due to "a reason of personal conscience," as provided in Governor Abbott's executive order.
  
  
• Supersedes Conflicting Orders and State Statues: Governor Abbott's executive order is crafted to supersede any conflicting order issued by local officials in response to the COVID-19 disaster. The order suspends Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with his latest executive order.
  
  
• Governor Abbott's Justifications: The governor's executive order cites several rationalizations for his prohibition on private employer vaccine mandates, including:
• His previous series of orders aimed at protecting the health and safety of Texans, ensuring uniformity throughout the state and achieving the least restrictive means of combatting the evolving public health threat.
• That COVID-19 vaccines "are strongly encouraged for those eligible to receive one, but must always be voluntary for Texans."
• His prior orders prohibiting governmental entities and certain others from imposing COVID-19 vaccine mandates or requiring vaccine passports.
• Federal government overreach: "the Biden Administration is now bullying many private entities into imposing COVID-19 vaccine mandates, causing workforce disruptions that threaten the state's continued recovery from the COVID-19 disaster."
• Texans who "fear losing their livelihoods because they object to receiving a COVID-19 vaccination for reasons of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19."
  
  
• Legislature's Primary Role Over Immunizations: Governor Greg Abbott also noted that via Chapter 161 of the Texas Health and Safety Code and other laws, including Chapters 38 and 51 of the Texas Education Code, the legislature has established its primary role over immunizations, and that all immunization laws and regulations in Texas stem from the laws established by the legislature. Further, the legislature has provided exemptions permitting people to opt out of mandatory vaccination for reasons of conscience or medical reasons.
  
  On October 11, Abbott sent a letter to the Chief Clerk of the House and Secretary of the Senate adding this vaccination issue as an item to the Third Special Session agenda so that it can be considered for legislation. The governor said that this latest executive order will be rescinded upon the passage of such legislation.

Who: Pamela Wolf, J.D., Senior Legal Analyst

Pamela Wolf, J.D., is a senior employment legal analyst at Wolters Kluwer Legal & Regulatory U.S. who tracks and analyzes employment issues including White House and federal agency developments, federal regulations, court decisions, state and federal legislation, and labor and employment trends. Pamela can discuss the further anticipated conflicts that may arise throughout Texas following the ban, and what employers, employees, and residents should expect in the coming months.

Contact: To arrange an interview with Pamela or other legal experts from Wolters Kluwer Legal & Regulatory U.S. on this or any other related topics, please contact Linda Gharib: [email protected] 

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