In a transfer positive to generate controversy, confusion, and litigation, on October 11, 2021, Texas Governor Greg Abbott issued an Government Order successfully prohibiting all non-public companies from requiring staff or prospects be vaccinated in opposition to COVID-19.

Government Order GA-40 (the “Order”) states that no “entity in Texas can compel receipt of a COVID-19 vaccine by any particular person, together with an worker or…client, who objects to such vaccination for any cause of non-public conscience, primarily based on a spiritual perception, or for medical causes, together with prior restoration from COVID-19.” Beforehand—and likewise by way of an govt order—solely Texas public/authorities companies and college districts have been prohibited from implementing vaccine mandates.

The Order’s sweeping language permits people to refuse vaccinations on grounds of “private conscience” and, as well as, expands the premise for a medical exemption to “prior restoration” from COVID-19. It is a marked enlargement from the preexisting authorized consensus, which allowed exemptions solely within the case of a sincerely-held spiritual perception or ADA-qualifying incapacity.[1] Absent additional steering, the undefined phrase “private conscience” may permit staff to refuse vaccination on basically any grounds.[2]

The Order gives enforcement by way of fines. Particularly, non-compliant entities could also be fined as much as $1,000 per offense, whereas jail time is particularly excluded as a penalty. The Order’s language makes no exception for health-care suppliers equivalent to hospitals and different associated entities.

The Order additionally contemplates its personal sundown upon the passage of overlapping laws. Particularly, within the Order, Governor Abbot states that he’s “including this problem to the agenda” for an upcoming session of the Texas legislature, and that he “will rescind this [Order] upon the efficient date of such laws[.]”

Notably, the Order contradicts each the Governor’s personal statements on the rights of personal companies inside the state, and authorized consensus relating to the flexibility of employers to mandate vaccinations most often. For instance, in August, Governor Abbot issued an govt order banning public and governmental entities from enacting vaccine mandates, however explicitly left non-public entities to make their very own choices relating to the matter. At the moment, a spokesman for the Governor’s workplace additionally commented that personal companies can be left to make their very own choices relating to the matter. The Order basically closes that loophole.

The Order additionally contravenes present authorized precedent inside the state relating to employer vaccine mandates. For instance, in June 2021, the Federal District Courtroom for the Southern District of Texas dismissed a lawsuit by 117 staff of Houston Methodist Hospital; who claimed Methodist’s coverage requiring staff to be vaccinated in opposition to COVID-19 amounted to wrongful termination underneath the regulation, as a result of the vaccine(s) are “experimental and harmful.” Bridges v. Houston Methodist Hosp., CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021). In no unsure phrases, the Order squarely contradicts the holding in Bridges.

The Order additionally makes specific feedback relating to the federal authorities and, extra particularly, the Biden administration. Particularly, the Order claims that the “Biden Administration is now bullying many non-public entities into imposing COVID-19 vaccine mandates, inflicting workforce disruption[.]”

The fast influence of the Order on companies who carried out vaccine mandates is unclear—particularly in gentle of conflicting Federal mandates. For instance, Texas-based Southwest Airways and American Airways have said publicly that—whatever the Order—they are going to proceed to implement plans requiring staff be vaccinated, citing federal mandates for contractors and the forthcoming OSHA rule for personal enterprise with 100 or extra staff. Whereas nothing is for certain, it’s considerably seemingly that OSHA guidelines and laws would preempt the Order. However Texas companies with fewer than 100 staff would nonetheless be topic to the Order, or future, associated State laws.

Regardless, in gentle of the Order’s language, any Texas enterprise entity that beforehand required staff or prospects be vaccinated ought to search counsel and reexamine its accompanying insurance policies or danger non-compliance with the Order. At a minimal, Texas companies ought to—for now—think about including exemption language to vaccine insurance policies that mimic the Order’s “private conscience” and “prior restoration from COVID-19” carve outs.

Sheppard Mullin’s Labor and Employment staff will proceed to observe the scenario and supply updates.

The authorized panorama continues to evolve rapidly and there’s a lack of clear-cut authority or vibrant line guidelines on implementation. This text is just not meant to be an unequivocal, one-size-fits-all steering, however as a substitute represents our interpretation of the place relevant regulation presently and usually stands. This text doesn’t tackle the potential impacts of the quite a few different native, state and federal orders which were issued in response to the COVID-19 pandemic, together with, with out limitation, potential legal responsibility ought to an worker turn into in poor health, necessities relating to household depart, sick pay and different points.

Sheppard Mullin is dedicated to offering employers with up to date data relating to COVID-19 and its influence on the office. Keep knowledgeable on authorized implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the agency’s varied COVID-19 weblog posts on a broad vary of subjects.

FOOTNOTES

[1] Full COVID-19 restoration had not beforehand been thought-about a incapacity or medical situation necessitating an exemption.

[2] The phrase “private conscience” can also be not well-defined or extensively utilized in Texas regulation. Accordingly, seeking to State caselaw for steering is basically unhelpful.