On October 11, 2021, Texas Governor Greg Abbott issued an executive order banning any entity, including private businesses, from requiring COVID-19 vaccinations for employees or customers. Governor Abbott’s executive order banning vaccine mandates conflicts with President Biden’s plan to increase vaccinations, announced in September, which includes “hard” vaccine mandates for federal contractors and healthcare workers.
State Action to Prohibit Vaccine Mandates
Governor Abbott’s executive order provides:
No 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. I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.
Interestingly, Governor Abbott’s order states that an entity cannot “compel receipt” of a COVID-19 vaccine. It is arguable that no employer vaccine mandate – not even a “hard” mandate – “compels receipt” of the vaccine. Instead, employees are required to be vaccinated (or receive an accommodation) as a condition of employment.
Governor Abbott has called on the Texas Legislature to pass a law to the same effect as his executive order. If the legislature does so, Texas would become the second state to pass a law prohibiting vaccine mandates.
Earlier this year, the Montana Legislature passed a law banning employers from requiring their employees to be vaccinated against COVID-19. Under the Montana law, requiring vaccines as a condition of employment is deemed “discrimination” and a violation of the state’s human rights laws.
President Biden’s Vaccine Mandates
As we reported previously, President Biden announced a plan last month targeted at increasing the number of people vaccinated against COVID-19.
One prong of President Biden’s plan was a “hard” vaccine mandate for federal employees and federal contractors. Recent guidance related to this mandate confirmed that employees of federal contractors do not have the option of testing in lieu of receiving the COVID-19 vaccine. Instead, on or before December 8, 2021, employees of federal contractors (and subcontractors) must be either: (a) fully vaccinated for COVID-19 or (b) receive a religious or medical accommodation.
Texas is home to major federal contractors, including American Airlines and Southwest Airlines, who have already announced they will abide by President Biden’s mandate. The apparent conflict between Governor Abbott’s and President Biden’s executive orders is resolved by the Supremacy Clause of the United States Constitution, which provides that federal laws trump conflicting state laws.
Indeed, the guidance related to the federal contractor vaccine mandate makes clear that it preempts any conflicting state laws:
Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?
A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.
In addition to the hard vaccine mandate for federal contractors, President Biden’s plan included a new CMS rule requiring all healthcare workers in CMS-regulated settings (including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies) to be vaccinated against COVID-19.
The new CMS rule still needs to be drafted, but it will most assuredly similarly preempt any conflicting state executive order or law.
While state and local governments may take certain actions related to mandatory vaccinations, it is important to remember that they may be preempted by any conflicting requirement that is promulgated pursuant to federal law. We will continue to monitor these situations as they develop.