On October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40, which states that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order also establishes a maximum criminal penalty of $1,000 but expressly excludes confinement as a penalty.  The governor further signaled in the preamble to the order that he would rescind the order on the effective date of legislation on the subject, which is currently being considered in the atypical Third Session of the Texas Legislature.  Governor Abbott has previously revised his COVID-19 related executive orders or issued supplemental guidance within the first few days of their issuance, so it is possible more clarification on this point will soon be forthcoming.

In the preamble, the governor notes that the order is in direct response to the recent actions by the Biden administration requiring the Occupational Safety and Health Administration to issue an Emergency Temporary Standard (“ETS”) mandating that employers with 100 or more employees require employees to be vaccinated or submit to weekly testing.  To this point, the order’s preamble states: in “yet another instance of federal overreach, the Biden Administration is now bullying many private entities into imposing COVID-19 vaccine mandates, causing workplace disruptions.”  Further insight can be gleaned from the governor’s previous pandemic orders, including Executive Order GA-38, in which he states that “COVID-19 vaccines are strongly encouraged for those eligible to receive one, but must always be voluntary for Texans.” 

The language of the executive order leaves many areas open for consideration by employers that have already implemented, or are in the midst of implementing, a vaccine program, including the following issues:

• The order’s list of appropriate objections is arguably vague.  One reading of the language sets “reasons of personal conscience” apart from religious or medical reasons (which appears to be consistent with the language in one of the many draft bills before the Texas Legislature), thus creating an independent third basis for refusal of a vaccine. But an alternative analysis grounded in interpretation of similar language under Texas law suggests instead that the “reasons of personal conscience” must be based on a religious belief, and not a separate, non-religious/non-medical basis for objection. 

• Similarly, while the phrases “medical reason” and “religious belief” appear to be broader in the order than they are under federal antidiscrimination statutes and similar state laws, it is also possible that the order did not intend to fully flesh out these tests and has left traditional EEO guidance on these issues in place. 

• Despite statements by the governor’s office regarding the intent of the order, the concept of what it means to be “compelled” is unclear in the text itself.  As litigated in federal court in Texas earlier this year, at-will employees in Texas are free to end employment at any time, and so employers arguably never “compel” anyone to receive a vaccine.  This topic is also addressed in a number of pending bills before the Texas Legislature.

• The order’s criminal provision has previously been interpreted by a few Texas prosecutors to mean $1000 per day in the context of earlier pandemic-related orders.  But there is no language in the order or the referenced statutory provision (Tex. Gov’t Code § 418.173) requiring this exact increment, and the order is otherwise silent on the subject.   

• The order does not create a private right of action, and any common law claim for wrongful termination would be foreclosed by Texas Supreme Court precedent addressing the extremely limited circumstances under which wrongful termination claims may be brought against employers in Texas. (That being said, more than one of the pending bills in the Texas Legislature on this topic would create such a right.)

• For employers that are currently bound by federal contractor vaccine program rules, federal law likely preempts state laws that are inconsistent with those federal rules, including the governor’s order.  As such, covered federal contractors and subcontractors subject to the recently announced vaccine program rules should carefully evaluate their options and consider continuing to comply with their vaccine program obligations under federal law.  For nearly all private employers, however, there is no federal requirement for vaccinating employees at this moment.  For employers scheduled to, but not yet covered by, federal contractor vaccine program rules, or for employers of 100 or more employees anticipated to be covered by OSHA’s planned emergency temporary standard covering vaccines, attention to this order is important, as anticipated federal supremacy on this subject may not be a sufficient basis to ignore current obligations that may arise under the order.  Moreover, the extent of federal preemption of OSHA’s anticipated temporary standard over the Texas executive order should be carefully considered after OSHA’s final rule is released.  In this regard, OSHA announced today a final version of the ETS vaccine rule for private employers was sent to the White House regulatory office, meaning the final OSHA rule could be released anytime in the coming days or weeks.

• We anticipate that adversely impacted employees of private employers may seek judicial intervention for enforcement of the order.   

• Given the above, an employer program that encourages vaccines, but that provides testing options as an alternative to the vaccine, may now be the most conservative approach for employers since it allows employees the option to remain unvaccinated.  Employers contemplating this type of vaccine program should consider the associated costs and time required for testing, among other legal and practical issues.  Those employers that are mid-stream on their own vaccine programs and ready to terminate unvaccinated workers may want to consult counsel about their positions in light of these changing circumstances. 

The order was effective upon issuance and remains in effect unless, and until, it is modified, amended, rescinded, or superseded by the governor. We will continue to monitor developments regarding this order and issue updates as more information becomes available.