On October 11, 2021, Texas Governor Gregg Abbott issued an Executive Order banning COVID-19 vaccine mandates for all entities in the state, including private businesses, for both employees as well as patrons, subject to a fine up to $1,000. Abbott's Order is an extension of his prior order banning mask mandates in schools and was issued in response to President Biden's Executive Order mandating vaccinations for certain businesses.
Conflict with Federal Law
On September 9, 2021, President Biden announced sweeping new regulations that will impact federal workers as well as some private businesses in an effort to combat COVID-19 and the Delta variant. Coined "The Path out of the Pandemic", the Department of Labor's Occupational Safety and Health Administration (OSHA) will issue an emergency rule that requires employers with 100 employees or more to mandate vaccinations of all employees or, subject to medical or religious exemptions, require weekly testing for COVID. In addition, the rule will require that all federal employees, federal contractors and certain healthcare workers be fully vaccinated against the virus, subject to medical or religious exemptions.
Abbott’s Order comes in direct conflict with the President’s Executive Order, which puts many businesses in a no-win situation with no guidance on how to proceed without breaking either state or federal law. If they comply with Governor Abbott's ban, they will be in violation of federal law, with penalties expected to be in the range of $14,000 per violation and potentially higher. If they comply with President Biden's vaccine mandates, they will be in violation of Texas state law, with penalties up to $1,000 per violation.
Exemptions to the Texas Law
Abbott's Order also provides several exemptions, including two not contemplated by federal law or clarified in any way. Under Abbott’s Order, people may opt out of a vaccine requirement for religious reasons, medical reasons, proof of having COVID-19 in the past, or "personal conscience" reasons. The first two exemptions are supported by federal law and have been clarified through years of litigating such exemptions under the Americans with Disabilities Act or Title VII of the Civil Rights Act. The latter two exemptions, however, will undoubtedly stir up controversy and confusion due to the lack of definitive guidance on the applicable qualifications.
First, medical exemptions typically involve pre-existing conditions, doctor recommendations, or allergic reactions to vaccine ingredients, all of which are provable and fairly easily defined. Proof of a previous case of COVID, however, is not widely-accepted as a basis for a medical exemption, and there is no guidance as to the acceptable duration of time since the COVID infection occurred, whether a COVID-positive test is required as proof, or if a person’s verbal report (like with religious exemptions) will suffice.
Second, there is no guidance whatsoever as to what constitutes a valid exemption based on an individual’s "personal conscience.” Without definition, this exemption is effectively a green light for anyone and everyone in the state to negate a vaccine request or requirement by an employer, school, or business (including concert venues, ball parks, and stadiums).
OSHA is currently working on formal guidance for employers regarding the vaccine mandate promulgated by the Biden administration. OSHA’s guidance is expected any day, and would preempt any directives outlined in the Abbott Order for employers with 100 or more employees, healthcare employers, and federal contractors in Texas. Smaller businesses outside of healthcare and federal contracting, however, would still be subject to the Abbott Order. The conflict between state and federal law and the lack of guidance from Governor Abbott about the interpretation of his recent Order are already the subject of various legal challenges and requests for clarification, so there is definitely more to come.
Employer Takeaways
- All Texas employers are advised to wait for further guidance from the Governor's office, the Texas legislature, OSHA, or a court ruling before changing or altering any policies in place.
- Texas employers with 100 or more employees, health care employers, and federal contractors will likely need to comply with federal law regarding vaccines in the workplace, and may be able to avoid application of the Abbott Order.
- Small Texas employers outside of healthcare and federal contracting will likely need to comply with the Abbott Order.
- In anticipation of compliance with state or federal law, all Texas employers should document the vaccination status volunteered by an employee, and the basis for exemption asserted by an employee, in the employee’s confidential file.
- All Texas employers should ensure that they are honoring the medical exemption under the ADA and religious exemption under Title VII asserted by employees.
- Monitor developments as more guidance emerges at the state and federal level, and continue documenting the reasonable steps taken by employers in an effort to comply with federal and/or state law.
As the country continues to grapple with the confusing guidance from various governmental sources, employers are well-served by taking a cautious approach, documenting reasonable efforts to work with individual employee requests, documenting good faith attempts at compliance to avoid any future punitive measures, and consulting with legal counsel before taking any adverse employment action.
The attorneys at WSHB are available to provide guidance through these murky waters on the employment law front as we all emerge from the pandemic. Please do not hesitate to reach out to the author of this article or any member of our employment law practice team for help.
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This article was co-authored by Madison O. Arcemont, a law clerk in WSHB's Dallas office.