Texas Governor Issues Executive Order Significantly Limiting the Ability of Many Employers to Mandate Vaccines

On October 11, 2021, Governor Greg Abbott issued Executive Order (EO) No. GA-40, prohibiting any entity in Texas from requiring any individual, including an employee, to receive a COVID-19 vaccination if that individual 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.” Violation of EO GA-40 can result in a maximum fine of up to $1,000 per violation. With the issuance of EO GA-40, Texas joins Montana as the only two states with current orders or laws directly addressing private employers’ rights to mandate vaccination for employees.

The wording of Governor Abbott’s order is ambiguous as to whether it creates three bases for objecting to the vaccination or two. Specifically, it is unclear from the order itself whether it prohibits employers from requiring individuals to be vaccinated if those individuals object based on their (1) personal conscience, (2) religious belief, or (3) medical reasons, or whether it prohibits employers from requiring individuals to be vaccinated based on their (1) personal conscience based on a religious belief, or (2) medical reasons. The order can be read either way. Governor Abbott has since clarified in an interview that he views the “personal conscience” exemption as a separate category, so the ambiguous language notwithstanding, at least his intent was to broaden the typical exemptions under Title VII or the Americans with Disabilities Act (ADA), in effect adding both “personal conscience” and COVID-19 recovery as exempt categories.

When read literally, Governor Abbott’s order does not explicitly prohibit employers from inquiring into vaccine status or taking adverse employment action based on vaccine status. It states merely that employers cannot “compel receipt of a COVID-19 vaccine” (emphasis added). An employer could argue that its mandatory vaccine policy doesn’t “compel receipt” of the vaccine because the employee is free to quit his or her job rather than get vaccinated.

Governor Abbott’s order comes at a time when many Texas employers are preparing to comply with various aspects of President Biden’s COVID-19 Action Plan, including vaccine mandates for federal contractors and health care workers at Medicare and Medicaid-participating hospitals and other health care settings and the forthcoming emergency temporary standard (ETS), which the U.S. Occupational Safety and Health Administration (OSHA) is to develop and implement, requiring all employers with more than 100 employees to ensure its employees who report to a worksite are either vaccinated or tested weekly. Indeed, in EO GA-40, Governor Abbott specifically referenced the Biden administration’s “bullying [of] many private entities into imposing COVID-19 vaccine mandates, causing workforce disruptions that threaten Texas’s continued recovery from the COVID-19 disaster.”

Regardless of how Governor Abbott’s latest order is interpreted, it is his most expansive order to date. On April 5, 2021, Governor Abbott signed Executive Order No. GA-35, prohibiting government entities and private entities that receive public funds from requiring certain individuals to obtain COVID-19 vaccinations or to provide what has become known as “COVID-19 vaccine passports.” For government agencies, these prohibitions extend broadly to “any individual,” whereas the prohibitions applicable to private companies receiving public funds are limited to “consumer[s].”

Subsequently, on June 7, 2021, Governor Abbott signed into law legislation that prohibits government entities from requiring individuals to provide evidence of COVID-19 vaccination status and strongly discourages private businesses in Texas from requiring COVID-19 vaccine passports from customers. Importantly, nothing in the prior orders or the new statute prevented private employers in Texas from requiring employees to be vaccinated, whereas EO GA-40 does impose such a prohibition in some circumstances. Moreover, EO GA-40 does not reference the ability of a private employer to deny a requested exemption due to undue hardship or direct threat posed to the employee or others, as may be allowed under Title VII or the ADA, as applicable.

How Governor Abbott’s new order will interact with President Biden’s vaccine mandate for certain federal contractors, the forthcoming ETS, or the forthcoming Centers for Medicare & Medicaid Services emergency regulation requiring vaccination of workers in most health care settings that receive Medicare or Medicaid reimbursements is unclear. Whether one or more federal requirements preempts Governor Abbott’s order remains to be seen but is an issue we have already explored and will continue to track carefully.

While violation of Governor Abbott’s order can result in a maximum fine of up to $1,000 per violation, there is not a private right of action for violating the order. Under Texas law, it is unlawful to terminate an employee because that employee refused to perform an illegal act. This is known as a Sabine Pilot claim, named after the case that created this exception to the very strong at will policy in Texas. However, there would be numerous defenses to an attempt to assert a Sabine Pilot claim based on the termination of an employee who refuses to get vaccinated, even if such an employer mandate violates Governor Abbott’s order. As with the preemption issues, we have already researched the Sabine Pilot defenses and will continue to track developments.

In short, Governor Abbott’s order is a significant development, but it leaves many questions unanswered. Future legal challenges and additional guidance from the various government authorities may provide greater clarity. Until then, Ogletree Deakins will continue to supplement its prior research and monitor and report on developments with respect to the COVID-19 pandemic, including updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.