Synopsis of Seyfarth: Texas Governor Greg Abbott issued an executive order prohibiting public and private employers from requiring employees or customers to receive the COVID-19 vaccine if those people object for “any reason of personal conscience, based on a religious belief, or for medical reasons, including previous recovery from COVID-19. “
On October 11, 2021, Texas Governor Greg Abbott issued Executive Order No. GA-40, prohibiting vaccination warrants, subject to legislative action. The Order, which comes into effect immediately, prohibits any “entity in Texas” (presumably covering both public and private employers) from forcing individuals – including employees and consumers – to receive a COVID-19 vaccine, if people oppose vaccination for “any reason of personal conscience, based on religious belief, or for medical reasons, including a previous recovery from COVID-19.“
The language of the Order is somewhat ambiguous, in that it is not entirely clear whether the objector’s “personal conscience” is to be based on “religious belief” and / or “Medical reason”, or whether there are rather three distinct bases for exemption, including a broad exemption based on “personal conscience” alone. By comparison, the Order refers to existing Texas laws requiring vaccination in schools, which provide exemptions “for any reason of conscience, including religious belief” or if “vaccination is medically contraindicated on the basis in the opinion of a doctor ”. Tex health code. 161.004 (d); Tex. Educ. Code 38.001 (c) (1) (B), 51.9192 (d) (2). These existing laws adopt a broad conception of the expression “any reason of conscience”, religious belief being only a ground for qualification. The governor’s order appears to take a narrower approach (choosing to trade “including” for “on the basis of”), but the language is unclear.
Additionally, although the Order refers to religious and medical objections to vaccination warrants, it does not explicitly take into account the narrower federal standards of Title VII and ADA (as well as the corresponding state law. of Texas) for religious and medical accommodations. These standards require a “sincere” religious belief, proof of a “disability” as defined by the ADA, and authorize refusals of accommodation based on undue hardship for the company. Based on the wording of the order, there is an open question as to whether an employer can request more information to substantiate the individual’s medical or religious objection, even though doing so would place an undue burden on the individual. business, or if the religious belief is not sincere.
Failure to comply with the order is punishable by a fine of $ 1,000 per violation, in accordance with Section 418.173 of the Texas Government Code and the state’s emergency management plan. However, it is unclear exactly when a violation would occur or how it might be accounted for – at the time of termination for refusal of a vaccine, when an employer refuses an accommodation, or perhaps when an employer implements a. vaccine mandate policy without the necessary exemptions. It is also not clear whether the ordinance is intended to apply to employees of Texas employers working out of state.
Notably, the Order does not create a private right of action for employees or others to apply the Order. Texas is an at will employment state, which means employees can theoretically be fired for refusing to comply with a vaccination warrant, and there is no public policy exception to the doctrine. employment at will, subject to disability and religious accommodation being taken into account. As such, it does not appear that employees can file an unfair dismissal claim under this Order, absent a related violation under Title VII, the ADA or the Act of the corresponding state.
Conflict with federal law
As we have previously reported, on September 9, 2021, the Biden administration announced that OSHA is developing a federal rule that will require all employers with 100 or more employees to ensure their workforce is fully immunized or will require any unvaccinated worker to produce a negative test result at least once a week before coming to work. OSHA will issue a Temporary Emergency Standard (ETS) to implement this requirement. OSHA ETS will be added to the planned mandate for federal contractors to be vaccinated by December 8, 2021.
The Order of Texas is likely to conflict with the above federal mandates. Although presumably under the Supremacy clause, federal law would prevail, OSHA’s mandate would not cover employers less of 100 employees. In addition, neither of the two mandates is yet fully in place, as the OSHA ETS has not yet been issued and most government contractors have yet to insert operational clauses into their contracts.
To add even more confusion, the executive order does not specify whether it applies to Texas-based employers or whether it applies to companies that have employees working and / or residing in Texas. Employers who have employees in Texas, but do not have physical locations in Texas, must now consider whether their vaccine mandates or vaccine mandate plans are enforceable.
Notably, Governor Abbott affirms this order, like many of his other COVID-related orders, under the Texas Disaster Act. As recently as last week, a Dallas Court of Appeals panel rejected Gov. Abbott’s interpretation of the disaster law, arguing that mask warrant bans are not within the discretion of the law. . In response, Governor Abbott said he has the ultimate authority under the law over how Texas should handle the pandemic. Following the hearing, a judge issued a temporary injunction and an appeal followed. We expect to see similar legal challenges to this new ordinance in the very near future, and anticipate similar rulings in the same direction.
Texas employers considering a vaccination warrant should proceed with caution. At this point, neither the OSHA HTA nor the Federal Contractor’s vaccine mandate are fully in place. As such, until the ordinance is successfully challenged or pre-empted by federal law, Texas employers should carefully consider the ordinance and whether to suspend implementation or change their mandates in the matter. vaccines in response to the prescription. Employers should consider incorporating sufficient safeguards into their internal policies, including an exemption for “any other reason required by applicable law or ordinance” as a basis for raising an objection to the vaccine, and deal with such requests on a case-by-case basis. case. Employers should also consider suspending any vaccine requirements until the federal government enacts a replacement rule, until we get more clarity on pre-emption issues through court challenges, or until more details emerge regarding the state’s intended or actual enforcement activity against private employers (which we think may be slow given their limited resources and ongoing legal battles with various school districts and counties which challenged previous decrees).