On September 9, 2021, President Biden announced his “Path Out of the Pandemic” Plan, which includes two elements: (1) an Executive Order, applicable to covered government contractors, and (2) the development of an Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration (OSHA), applicable to employers with 100 or more employees.

The Executive Order requires covered federal contractors to ensure that their covered contract employees are fully vaccinated against the coronavirus disease 2019 (COVID-19) by December 8, 2021, with certain exceptions for legal accommodations. The ETS is expected to require all employers with 100 or more employees to ensure that such employees are either (a) fully vaccinated against COVID-19 or (b) subjected to a weekly COVID-19 testing regimen. For more information on these developments, see our prior alert.

Over the last two weeks, however, both the Texas governor and the Texas Legislature have taken steps to limit these impending federal requirements. While recent legislative efforts failed, Governor Greg Abbott’s Executive Order remains in effect and bills may be revived in a potential fourth special session.

On October 11, 2021, just one day before OSHA issued its final draft ETS to the White House’s Office of Management and Budget, Governor Abbott issued Executive Order GA-40, which states that no entity in Texas may “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based upon a religious belief, or for medical reasons, including prior recovery from COVID-19.” Importantly, the order’s enforcement mechanism establishes a maximum criminal penalty of $1,000 but expressly excludes confinement in jail.[1] It is not clear whether the fine may be levied on a per-day or per-employee basis, as the order is silent in that regard. We note that, in the context of earlier pandemic-related orders, which utilized the same enforcement approach, several Texas prosecutors interpreted this language to mean imposition of a daily fine of $1,000. Executive Order GA-40 was effective upon issuance and remains in effect until it is modified, amended, rescinded or superseded.

Texas lawmakers also proposed two bills that would have expanded the scope of mandatory exemptions. On October 7, 2021, HB 155, entitled Exemptions From COVID-19 Vaccine Requirements, was introduced in a third special session of the Texas Legislature. HB 155 provides that no entity, including a private business, may compel any employee or consumer to obtain a COVID-19 vaccine if that person seeks an exemption to such vaccination because of “the individual's acquired immunity against COVID-19 through post-transmission recovery, a medical condition, or reasons of conscience, including a religious belief.” It also authorizes a private right of action for damages – such as injunctive or equitable relief or for compensatory or punitive damages – if the establishment engaged in a discriminatory or unlawful employment practice. SB 51, a companion measure to HB 155, similarly would would amend the Texas Labor Code to provide that an employer “commits an unlawful employment practice if the employer fails or refuses to hire, discharges, or otherwise discriminates against an individual with respect to the compensation or the terms, conditions, or privileges of employment because the individual claims an exemption [based on reasons of conscience].”

While both measures failed in the latest special session, which adjourned October 19, some lawmakers expect Governor Abbott to call a fourth special session.

So, what does it all mean?

For employers currently bound by the Executive Order for federal contractors, federal law may be found to pre-empt Texas laws that are inconsistent with those federal rules, including the governor’s order. The guidance promulgated in support of President Biden’s Executive Order states that “[t]hese requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”

At this time, however, until the ETS is published, there is not yet a federal requirement for vaccinating employees. Moreover, even when the ETS is published, which is expected to occur in the coming days or weeks, the extent of federal pre-emption is likely to be the subject of litigation. It should be noted that Governor Abbott’s order does not prohibit employers from adopting a vaccine mandate, but rather requires consideration of additional exemptions. In the meantime, Texas employers are urged to proceed cautiously before taking action against an employee who has stated an objection to receiving a vaccine under one of the exemptions outlined in the order.

We will continue to monitor developments regarding Governor Abbott’s order and the ETS, as well as any legislative action, and will provide further updates as additional information becomes available.