Hunton Employment & Labor Perspectives

On October 11, 2021, Governor of Texas, Greg Abbott, issued Executive Order GA-40, which proscribes entities from compelling individuals to receive the COVID-19 vaccine who object “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Offending entities can be fined up to $1,000 for failing to comply with this order.

This order follows three previous executive orders from Governor Abbott prohibiting certain entities and others from requiring Texans to get the COVID-19 vaccine or possess a vaccine passport, but it is the only one that prohibits private employers in Texas from requiring their employees to be vaccinated.

Governor Abbott issued this executive order shortly before OSHA’s forthcoming emergency temporary standard is expected to be instituted. This upcoming regulation will require employers with more than 100 employees to mandate that their workforce either be fully vaccinated or provide weekly negative COVID-19 test results. While it is unclear how the two will interact with each other, Executive Order GA-40 may be reconcilable with OSHA’s forthcoming regulation because the latter will allow for unvaccinated employees, so long as they are tested weekly.

However, GA-40 appears to be in direct conflict with President Biden’s executive order requiring that federal government contractors receive the COVID-19 vaccine, as well as the forthcoming Centers for Medicare & Medicaid Services emergency regulation, which will require health care workers for those entities that receive Medicare or Medicaid reimbursements to be vaccinated.

While Governor Abbott’s executive order is a significant legal development in Texas, it remains unclear how future legal challenges and guidance will instruct this legal issue. Employers should work with counsel to ensure compliance with the various and conflicting legal requirements until the law is further developed.