Seyfarth Synopsis: Texas Governor Greg Abbott has issued an Executive Order prohibiting public and private employers from requiring employees or customers to receive the COVID-19 vaccine if such individuals object for “any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

On October 11, 2021, Texas Governor Greg Abbott issued Executive Order No. GA-40 relating to prohibiting vaccine mandates, subject to legislative action. The Order, which is effective immediately, prohibits any “entity in Texas” (presumably covering both public and private employers) from compelling individuals — including employees and consumers — to receive a COVID-19 vaccine, if the individuals object to vaccination for “any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

The Order’s language is somewhat ambiguous, in that it is not entirely clear whether the objector’s “reason of personal conscience” must be based on a “religious belief” and/or “medical reason,” or instead whether there are three separate 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 a religious belief” or if “the immunization is medically contraindicated based upon the opinion of a physician.” Tex. Health Code 161.004(d); Tex. Educ. Code 38.001(c)(1)(B), 51.9192(d)(2). These existing laws take a broad view of the phrase “any reason of conscience,” with religious belief being but one qualifying ground. The Governor’s Order appears to take a narrower approach (choosing to swap “including” for “based on”), but the language is unclear.

Additionally, while the Order refers to religious and medical objections to vaccine mandates, it does not explicitly account for the more narrow federal standards under Title VII and the ADA (as well as corresponding Texas state law) for religious and medical accommodations. These standards require a “sincerely held” religious belief, proof of a “disability” as defined under the ADA, and allow for accommodation denials based on undue hardship to the business. Based on the face of the Order, there is an outstanding question about whether an employer can seek more information to support the individual’s medical or religious objection, even if it would impose an undue burden on the business, or the religious belief is not sincerely held.


Failure to comply with the Order is punishable by a $1,000 fine per violation, in accordance with Section 418.173 of the Texas Government Code and the State’s emergency management plan. It is unclear, however, when exactly a violation would occur or how they may be counted — upon termination of employment for refusing a vaccine, when an employer denies an accommodation, or perhaps when an employer implements a vaccine mandate policy without the necessary exemptions. It is also not clear whether the Order is intended to apply to employees of Texas employers working outside the State.

Notably, the Order does not create a private right of action for employees or other individuals to enforce the Order. Texas is an at-will employment state, meaning that employees may theoretically be terminated for refusing to comply with a vaccine mandate, and there is no public policy exception to the at-will employment doctrine, subject to due consideration for disability and religious accommodations. As such, it does not appear that employees could bring a wrongful termination claim under this Order, absent a related violation under Title VII, the ADA, or corresponding state law.

Conflict with Federal Law

As we 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 vaccinated or require any workers who remain unvaccinated to produce a negative test result at least on a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. The OSHA ETS will be in addition to the expected mandate for federal contractors to be vaccinated by December 8, 2021.

It is likely that the Texas Order conflicts with the above federal mandates. While presumably under the Supremacy Clause, federal law would prevail, the OSHA mandate would not cover employers with fewer than 100 employees. Additionally, neither mandate is fully in place yet, since the OSHA ETS has not yet issued, and most government contractors do not have the operative clauses yet inserted into their contracts.

To add further confusion, the Order does not specify whether it applies to employers based in Texas or whether it applies to companies who have employees working in and/or residing in Texas. Employers who have employees in Texas, but do not have physical locations in Texas, are now left with the debate as to whether or not their vaccine mandates or vaccine mandate plans are enforceable.

Notably, Governor Abbott asserts this Order, like many of his other COVID-related Orders, under the Texas Disaster Act. As recently as last week, a Dallas appellate court panel rejected Governor Abbott’s interpretation of the Disaster Act, arguing that prohibitions of mask mandates do not fall under the Act’s discretions. In response, Governor Abbott stated that he has the ultimate authority under the Act as to 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 Order in the very near future, and anticipate similar rulings along the same lines.

Employer Considerations

Texas employers considering a vaccine mandate should proceed with caution. At this point, neither the OSHA ETS nor the federal contractor vaccine mandate are fully in place. As such, until the Order is successfully challenged or preempted by federal law, Texas employers should carefully consider the Order and whether they need to pause implementation or change their vaccine mandates in response to the Order. Employers should consider building sufficient safeguards into their internal policies, including an exemption for “any other reason required by applicable law or order” as a basis for stating an objection to the vaccine, and handle these requests on a case-by-case basis. Employers should also consider pausing any vaccine requirements until either the federal government issues a superseding rule, until we obtain more clarity on the preemption issues through court challenges, or until more details emerge regarding the State’s anticipated or actual enforcement activity against private employers (which we believe may be slow given their limited resources and ongoing legal battles with various school districts and counties that have challenged previous Executive Orders).