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New Texas Executive Order Expands Scope of Exemptions for Vaccine Mandates

October 12, 2021

Texas Governor Greg Abbott issued Executive Order No. GA-40 (EO GA-40) on October 11, 2021, which purports to prohibit vaccine mandates, but in reality expands the scope of mandatory exemptions to such mandates. The order, which became effective immediately, states that no entity, including a private business, may compel any employee or consumer to obtain a COVID-19 vaccine if that person “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.”

To be clear, EO GA-40 does not actually ban vaccine mandates. Instead, EO GA-40 provides that they must be subject to certain exemptions. However, the scope of these required exemptions is not clear, as the language is ambiguous and can be interpreted in two different ways. First, it could be read as providing two grounds for exemption: “[1] for any reason of personal conscience, based on religious belief, or [2] for medical reasons, including prior recovery from COVID-19” (numerals added). Alternatively, it could be read as providing three distinct grounds for exemption: “[1] for any reason of personal conscience, [2] based on religious belief, or [3] for medical reasons, including prior recovery from COVID-19” (numerals added).

EO GA-40 is silent on the issue of undue hardship. Under federal law, the undue hardship exception allows an employer to deny a religious accommodation if it poses more than a minimal cost on the operations of a business, or a disability accommodation if it poses a significant difficulty or expense, or if the employee poses a direct threat to the health or safety of others. The Texas labor code provides similar exceptions. EO GA-40 also provides that “prior recovery from COVID-19” is grounds for a medical exemption to a vaccine mandate, notwithstanding guidance from CDC that recommends vaccination for individuals who have had COVID-19 previously.

Further, EO GA-40 does not define what it means to “compel” a person to receive a COVID-19 vaccine.  For example, do job actions such as employment terminations meet that criteria? If so, what about voluntary return-to-work policies, differing masking requirements, or insurance surcharges? There is also a question as to whether the governor even has the authority to issue this order under Section 418 of the Texas Government Code.

Additionally, there are questions regarding EO GA-40’s enforcement and fines. Prior executive orders, such as EO GA-29, authorized “local law enforcement and other local officials” to issue fines for non-compliance and enforce the terms of the executive orders. EO GA-40, however, does not specifically authorize any state or local agency to enforce its provisions or to levy fines. It is therefore unclear how and to whom an allegedly aggrieved individual would report a violation of EO GA-40 and who would adjudicate the allegation and impose any fines. Indeed, the order does not explicitly provide a private right of action, nor does it indicate that it applies retroactively to individuals already impacted by existing vaccinate mandates. Additionally, while EO GA-40 states that failure to comply with the order could carry a “maximum fine” of $1,000, it is unclear whether a fine would apply on a per-entity or per-aggrieved individual basis.

We anticipate that in some instances, federal rules will preempt this order. For example, the President’s Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” which requires covered contractors and subcontractors to be fully vaccinated or qualify for a medical or religious accommodation, applies even in states or localities that seek to prohibit compliance with it. Q19 of the Guidance for Federal Contractors and Subcontractors specifies, “These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”

Clearly, many questions remain regarding EO GA-40, and we will continue to monitor for any additional guidance issued by the state. Governor Abbott has requested the Texas Legislature to pass legislation addressing vaccine mandates and has indicated that he will rescind EO GA-40 if such legislation is enacted. We will monitor the progress of this legislation in the hopes that more definitive answers will be provided.

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