On Oct. 11, 2021, Texas Gov. Greg Abbott signed Executive Order No. GA-40 (EO), which prohibits any “entity in Texas” from compelling an employee or consumer to receive a COVID-19 vaccine if that person objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” The EO went into effect immediately.

Ambiguity of “Reason of Personal Conscience”

As written, the EO is not clear on whether the “reason of personal conscience” must be based on a religious belief or whether these are two separate objections to receiving the vaccine. To date, the governor’s office has not issued a clarification on this point. Further, the term “personal conscience” is not defined in the EO and arguably encompasses any personal reason — including political — for objecting to receiving a COVID-19 vaccine. The EO also specifically provides that “prior recovery from COVID-19” is a medical reason that justifies refusing a vaccine.

Enforcement Avenues

Under the EO and the Texas Disaster Act, the penalty for a violation cannot exceed $1,000. While the EO and the Texas Disaster Act are silent on details of enforcement, the governor’s office and the Texas attorney general’s office stated in prior public statements and filings that state and local law enforcement agencies and district attorneys may enforce previously issued EOs relating to the COVID-19 pandemic.

The governor requested that the state legislature, which is currently in a special session, pass legislation codifying the requirements of the EO. On Oct. 12, 2021, multiple bills were sent to the State Affairs Committee and one bill was already set for public hearing on Oct. 13.

Supremacy Clause Implications

The Texas EO and proposed legislation seek to challenge the plan announced by President Biden to expand national vaccination efforts. As McGuireWoods noted in a Sept. 10, 2021, alert, and in Sept. 20, 2021, FAQs, the Biden administration’s “Path Out of the Pandemic” COVID-19 vaccination mandates have three main components. Among other actions, the plan calls on the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an emergency temporary standard requiring all employers with 100 or more employees to mandate full vaccination or weekly testing. The much-anticipated OSHA standard has not been issued but was sent to the White House for approval on Oct. 12. Further, as noted in McGuireWoods’ Sept. 27, 2021, update, the Biden administration has already issued an executive order requiring vaccinations for certain federal contractors and subcontractors, which includes employees in Texas. Because of these conflicts, expect swift legal challenges to the Texas EO, including under the Supremacy Clause.

Open Questions

The EO leaves many questions unanswered for Texas employers, such as:

  1. Can an employer require visiting third-party vendors to submit proof of vaccination before they enter the employer’s premises?
  2. Can an employer make hiring decisions based on an applicant’s vaccination status?
  3. Can an employer require an employee who objects to being vaccinated based on a “reason of personal conscience” pay for alternative weekly (or less frequent) COVID-19 testing?

Expect quick legal action challenging the EO, which likely will provide more guidance on these open issues.

Practical Takeaways

For employers that do not currently mandate COVID-19 vaccination, this EO does not have any immediate effect. In addition, the EO does not prohibit a weekly testing requirement or other safety protocols (such as masking) as an alternative to requiring vaccination. Thus, employers may continue to encourage employees to receive the vaccine, provide incentives to employees who get vaccinated, and/or require weekly testing as an accommodation for those employees who decline to get vaccinated for one of the reasons stated in the EO.

Alternatively, for those Texas employers that have already mandated vaccines, a temporary suspension of the mandate may be an option to consider while the courts determine legal challenges to the EO.