Texas Executive Order to Prohibit COVID-19 Vaccine Mandate

As you undoubtedly know, there has been an enormous amount of media attention given to the recent efforts by the Governor of Texas to prohibit COVID vaccine mandates in Texas.  As could be expected, we have received a number of inquiries from clients who are anxious for guidance regarding just how their businesses could be impacted.  The Foley Government Solutions Practice Group has been closely monitoring the situation, and has provided the following summary.

Federal Executive Orders

The public debate began on September 9, when President Biden issued Executive Orders requiring all federal employees and contractors to be fully vaccinated against COVID-19 by December 8. President Biden also announced that workplace safety regulations would be promulgated to require workforce vaccination in companies with 100 or more employees.

Texas Executive Order

On October 11, Governor Greg Abbott issued Executive Order No. GA-40 relating to prohibiting vaccine mandates, subject to legislative action.¹  Simultaneously, Gov. Abbott added the issue of prohibiting vaccine mandates to the 3rd Called Special Session of the Texas Legislature, which adjourned on October 19, 2021 (see explanation of Texas Legislation and the legislative process below).

The Executive Order states “[n]o entity in Texas can compel 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.”  In his order, Governor Abbott suspended all relevant statutes to the extent necessary to enforce this prohibition.  The order will remain in effect until the passage of legislation addressing this issue.  The order also prescribes a maximum statutory fine that may not exceed $1,000 but also excludes the possibility of confinement in jail. 

The order carries the power to supersede any conflicting order issued by local officials in response to the COVID-19 disaster.  Several cities and school districts have adopted policies in conflict with prior executive orders of the Governor.  All have faced legal action brought by Attorney General Ken Paxton to enforce the Governor’s orders.

In the order, Abbott cited Chapter 161 of the Texas Health and Safety Code, which allows Texas public school students an exemption from immunization for reasons of conscience, including (but not limited to) a religious belief.  Other laws including Chapters 38 and 51 of the Texas Education Code, provide for process and procedures for claiming such exemptions for otherwise required vaccines such as meningitis, diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis. 

Further, Texas Attorney General Opinions are persuasive authority that can be binding on Texas state governmental entities such as public schools.  Texas Attorney General Opinion No. KP-0359 issued on March 5, 2021, answered the question whether the Education Code allows public school districts, during an epidemic, to exclude students who decline vaccinations for reasons of conscience even when such vaccinations are unrelated to the epidemic (RQ-0364-KP). Texas Attorney General Paxton’s reasoned Opinion largely concentrates on religious liberty and opines that a student’s exclusion from school for refusing to be vaccinated under Education Code subsection 38.001(f) could violate the Texas Religious Freedom Restoration Act:

“When government agencies take an action in furtherance of that interest that also burdens an individual’s free exercise of religion, the government agency must use the least restrictive means to further that interest. TEX. CIV. PRAC. & REM. CODE § 110.003(b)(2).”.

The opinion highlights Article I, § 6 of the Texas Constitution which provides, “No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship…” 

Texas Legislation

The Regular Session of the Texas Legislature adjourned sine die in May and, as mandated in the State Constitution, the State House and Senate were not scheduled to meet again until January 2023. However, the Constitution also authorizes the Governor to call any number of Special Sessions during the legislative interim, 30 days in length, and to determine the agenda for those sessions by a “Call.” Governor Abbott has taken advantage of this authorization to call the Legislature back into session three times since the end of the regular session to consider various bills supported by the Governor and the Republican majority in each House.  

Several bills had been pre-filed in the Texas Legislature when Governor Abbott added the prohibition of vaccine mandates to his Call for the Third Special Session.  One of those bills, HB 155, was selected to move forward in the State House and had its initial committee hearing on October 13. In the State Senate, SB 51 was the chosen vehicle and it was heard by committee on October 14. Both bills drew immediate and vocal opposition from business groups in the State due to the potential increase in liability exposure.  Neither bill was considered by either House before the Special Session ended on October 19. Although the Lieutenant Governor and others have urged the Governor to call a 4^th Special, the Governor has indicated that he will not do so, at least “not at this time.” Therefore, the order will stand, and stand alone. 

The heart of HB 155, which likely will be present in any final version, is the intent to require any COVID vaccine mandate implemented in Texas to include exemptions for: (1) acquired immunity from prior COVID infection, (2) medical conditions, or (3) reasons of conscience, including but not limited to religious grounds.  The exemptions must be included in any COVID vaccine mandate applied to employees or customers in Texas.  The initial draft of HB 155 applies to all entities in Texas, but there was immediate opposition and testimony from hospitals, health care providers and nursing homes.  Since there is an existing Chapter of the Health & Safety Code governing vaccine policies in health care institutions, it is likely they will be carved out of the current bill and continue under their existing statutory provisions.

The draft of the bill as it was introduced did not rely on any governmental enforcement mechanism, but instead created a discrimination cause of action brought by any employee (but apparently not customer).  As initially drafted, the employee could sue for injunctive relief, compensatory and punitive damages, attorney fees and costs.  This enforcement method has drawn vocal opposition from several groups, including the powerful tort reform group, Texans for Lawsuit Reform.  During consideration, the bill’s author stated that he would be open to removing the private cause of action and replacing it with some other means of enforcement. Furthermore, the enactment date would have created a 3-month window for employers to take action without fear of employee lawsuits. 

Other possible means of enforcement the legislators may consider would be the same statute cited in the Governor’s executive order and its $1,000 fine, or the enforcement provision in the prohibition against vaccine passports which simply makes any entity in violation ineligible for state contracts or grants.  The latter was mentioned as a possibility during the first committee hearing since this provision would be added right after the vaccine passport ban in the Health & Safety Code. This tool has been used by the Texas legislature in recent Anti-Israeli, Anti-Energy, and Anti-Firearm legislation.

For its part, SB 51 took a different tack than the House Bill, directly prohibiting vaccine mandate requirements by any governmental entity or school and defining as unlawful “discrimination” and any adverse employment action taken by an “employer, labor organization or employment agency” against an individual who claims an exemption from a vaccine mandate requirement.   

OSHA Regulations and Federal Contractor Mandate

Abbott’s Executive Order may very well face among its primary legal challenges as being directly contrary to an Emergency Temporary Standard (ETS) to be issued by the Department of Labor’s Occupational Safety and Health Administration (OSHA) to implement President Biden’s announcement on September 9 requiring all private employers with one hundred (100) or more employees to ensure that their workers are fully vaccinated against COVID-19 or produce a negative COVID-19 test each week.

The draft ETS, to be contained in OSHA Regulations, has been completed at the agency and is currently being reviewed at the White House. We expect its publication in a matter of days and it will likely require compliance in 15-30 days.

The ETS is likely to provide that the 100 employee threshold will be based on the aggregate number of workers across all sites of a company’s business operations and it is likely that OSHA will avail itself of its existing authority to investigate complaints and conduct workplace inspections to enforce the provisions of the ETS, as well as the issuance of penalties for violations of workplace standards.

The ETS has drawn concerns from a wide variety of business interest and it’s possible impact on the workforce and supply chain issues. 

Governor Abbott’s mandate may also be challenged as conflicting with President Biden’s executive order concerning federal contractors.

Conclusion

The recent developments in Texas relative to orders issued from Washington, D.C. have both created uncertainty in the business community, and it may be some time before there is a final resolution in the courts.  Our clients are relying on us to guide them through the competing federal and state requirements.  The Foley Government Solutions Practice Group is working closely with our employment, corporate, and litigation colleagues and will continue to monitor the situation very carefully.  We will endeavor to answer any questions Foley clients may have, and are also prepared to advocate on their behalf in the Legislature, with the Governor’s office, Attorney General, and, if necessary, in court. 

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