Texas employers who have tried to adopt “best practices” with respect to the health and safety of their employees and customers during the past 18 months have faced quite a challenge. Disagreements between officials at the local, state, and national levels, and the healthcare professionals supporting those officials, have resulted in a variety of guidance, executive orders, and laws often imposing contradictory requirements with respect to operating limitations and requirements, masking requirements, social distancing, and, now, vaccination requirements. While many may differ on their political, religious, philosophical, or other bases for supporting or opposing such requirements, most employers have gotten to the point that they simply want to know what they need to do to keep the doors open while keeping employees and customers safe. However, the answer to the issue of whether vaccinations can be required of employees just got more difficult for Texas employers.
Through the “COVID-19 Action Plan, Path Out of the Pandemic,” announced by President Biden on September 9, 2021, private employers were made aware of the President’s directive to OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to require COVID-19 vaccinations for all employees who are not able to demand a reasonable accommodation for religious or medical reasons, absent weekly negative COVID tests for such unvaccinated employees. OSHA still has not issued the ETS, but many employers have been working diligently to prepare for the anticipated ETS, notwithstanding the many questions that have arisen with respect to, for example, OSHA’s legal authority to issue such an ETS, the responsibility for paying for the cost of the COVID tests and responsibility for paying for the time spent getting tested. Subsequently, and based on President Biden’s Plan, the Centers for Medicare & Medicaid Services announced that healthcare employees working for employers that receive Medicare and Medicaid funding must be vaccinated. President Biden also issued Executive Order 14042, requiring that employees of federal contractors be vaccinated by not later than December 8, 2021, and extending the vaccination requirement to (1) employees who are working on a federal contract, (2) employees working “in connection with” a federal contract, and (3) employees working at a workplace where employees from group (1) or (2) are working, in addition to imposing other requirements regarding masking and social distancing.
In response to President’s Biden’s Plan, as well as other factors, Texas Governor Greg Abbott issued an Executive Order on October 11, 2021, that specifically prohibits any entity in Texas from requiring a COVID-19 vaccination by any individual, including employees and consumers, 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.” Those who violate the Executive Order can be given a fine of up to $1,000 per violation. The Executive Order was effective immediately, and Governor Abbott included in the Executive Order notice that he intends to add the issue of mandatory vaccinations to the agenda for the Third Called Session of the legislature, which is meeting currently.
Just as there are many unresolved issues related to the threatened OSHA ETS and President Biden’s Executive Order mandating vaccinations for federal contractors, there are also many questions regarding the enforceability and interpretation of Governor Abbott’s Executive Order. Employers in Texas who were preparing to implement vaccination requirements to comply with President Biden’s Plan, or who already imposed such requirements on their own, are now faced with a fine of $1,000 per violation under Governor Abbott’s Executive Order for imposing such a requirement on an employee in Texas, as well as the possibility of new laws from the legislature related to this issue. At this time, it is not possible to predict how the conflict between the various components of President Biden’s Plan and Governor Abbott’s Executive Order will be resolved, but litigation is anticipated, as the State of Texas and the federal government have been increasingly involved in litigation against each other on issues ranging from the border wall to Texas’ recent law regarding abortions.