Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.

Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, 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.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.

The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.

We have previously discussed federal Executive Order 14042, which requires covered federal contractors and subcontractors to mandate COVID-19 vaccines for covered contractor employees. The Texas EO appears to directly conflict with federal Executive Order 14042. However, the Safer Federal Workforce Taskforce’s Guidance expressly states that Executive Order 14042’s “requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”

We have also previously discussed the Department of Labor’s Occupational Health and Safety Administration’s forthcoming emergency temporary standard (OSHA ETS), which is expected to require employers with 100+ employees to ensure that those employees are either vaccinated against COVID-19 or are tested weekly. Because President Biden has stated that the OSHA ETS will have a testing option as an alternative to COVID-19 vaccination, the OSHA ETS and the Texas EO may not conflict. However, numerous questions remain since the OSHA ETS has not been published.

COVID-19 vaccination policies present complex issues, and the legal analysis is changing daily. Employers who are considering COVID-19 vaccination policies should consult with legal counsel to help navigate these issues.