As many may have seen, on October 11, 2021, Governor Greg Abbott of Texas issued Executive Order No. GA-40 (the "Texas Order"), immediately limiting Texas employers' ability to compel employees to receive COVID-19 vaccinations. This executive order was intended to remain in effect until Texas lawmakers passed mirroring legislation during a special session; however, the special session ended last week without any legislation on the topic. The Texas Order, therefore, remains in effect and states that:

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.

Importantly, the Texas Order expands the number of reasons available to employees to seek an exemption from a vaccine mandate, while decreasing the burden on employees to prove their need for such an exemption. While the Texas Order also poses potential conflicts with federal requirements, employers are not left without options to minimize the risk of violating the Texas Order while remaining compliant with federal requirements.

Expanded Number of Reasons for Objecting to COVID-19 Vaccinations

As noted, the Texas Order appears to broaden the number and scope of permissible vaccination objections. Under federal law, the ADA and Title VII provide employees with limited reasons to receive an exemption from an employer-imposed vaccination mandate: (i) an exemption based on a qualifying disability that prevents an employee from being vaccinated, unless granting the exemption would pose a direct threat to the health or safety of others or if doing do is an undue hardship to the employer, or (ii) an exemption based on a sincerely held religious belief, practice, or observance that prevents the employee from being vaccinated, unless granting the exemption is an undue hardship to the employer.¹

The Texas Order expands this list of possible objections by allowing an employee to object "for any reason of personal conscience." It is not clear whether this establishes a new basis to object to a vaccine requirement that is separate from an objection based on religious beliefs. The Texas Order 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). Proposed bills originating separately in the Texas House³ and Texas Senate³ did not provide clarity on this issue, though both added a new private right of action that employees could assert against employers that mandated COVID-19 exemptions over an employee's objection on the new proposed grounds. While these bills did not become law, some expect Governor Abbot to call a fourth special session to pass legislation on this topic.

Texas Order Decreases the Burden to Object to COVID-19 Vaccination Mandate

If the Texas Order establishes a new basis, it goes well beyond the protections under current law. Although not defined in the Texas Order, the "personal conscience" objection could be interpreted to include an employee's personal, non-spiritual preferences.

Second, an employee may object "based on a religious belief." Unlike Title VII, the Texas Order lacks any "sincerely held" consideration for religious beliefs.

Third, an employee may object "for medical reasons, including prior recovery from COVID-19." This exceeds the protections under the ADA, which requires that employees have a "qualifying disability." It is possible that the Texas Order could be interpreted to allow anyone who has been previously diagnosed with and recovered from COVID-19 to object to the vaccination requirement.

Finally, the Texas Order lacks any reference to any possible "accommodation," "undue hardship," or "direct threat" to others—all of which are considerations when evaluating an employee's request for an exemption from a vaccination requirement under the ADA, and the first two of which are considered under Title VII. The Texas Order appears to prohibit vaccine requirements based on an employee's objection alone.

In the absence of any clarifying legislation or subsequent order, the Texas Order broadens the number and scope of vaccine exemptions that Texas employees may seek, while at the same time eroding some of the boundaries employers would otherwise have to help manage such exemption requests.

Interplay Between the Texas Order and Federal Vaccine Mandates

Absent legal challenges to the Texas Order or a change in direction in Texas, federal rules are likely to conflict with the Texas Order. Most relevant here are the rules enacted under President Joe Biden's Path Out of the Pandemic: COVID-19 Action Plan (the Action Plan)⁴ and Executive Order 14042 (EO-14042). Where there are conflicts, the federal government is expected to assert that federal law preempts the Texas Order, but such preemption is likely to be litigated. Additionally, the federal rules are not applicable to all employers and employers in Texas, and should be examined on a case-by-case basis.

• OSHA Emergency Temporary Standard. Pursuant to the Action Plan, the U.S. Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) that will require private-sector employers with 100 or more employees to ensure their workers either (a) are fully vaccinated or (b) have tested negative for COVID-19 on a weekly basis. The Texas Order and the ETS rule are unlikely to conflict because weekly testing of employees would not violate the Texas Order, and employees could still be given the option of proving vaccination status to avoid weekly testing.
• Federal Contractor Mandate. Guidance issued pursuant to EO-14042 requires, among other things, that employers with individuals working on, or in connection with, federal government contracts, contract-like agreements, or subcontracts confirm that all workers be fully vaccinated against COVID-19 by December 8, 2021, subject to the ADA and Title VII medical and religious exemptions. The federal government's guidance already takes the position that this mandate preempts any contrary state laws, such as the Texas Order, but some expect that the State of Texas or others may challenge this position.

Enforcement of the Texas Order

The Texas Order provides for a maximum fine of up to $1,000 per violation. Still, there remain several questions regarding enforcement. The Texas Order does not explicitly authorize a state or local agency to enforce its provisions or to levy fines, and it is unclear where potential violations could be reported. In addition, enforcement language states that the fine will be imposed for any "failure to comply with" the Texas Order, but it is unclear if this would be on a per-entity or per-aggrieved-individual basis.

Texas employers are encouraged to confer with employment counsel to more fully discuss the other potential direct and indirect legal consequences of violations of the Texas Order.

Compliance with the Texas Order

The possible approaches an employer may take will depend on the nature of their business, the number of employees they have, their current policies, which federal rules—if any—apply to them, and their risk tolerance. We recommend discussing with counsel to prepare an appropriate action plan.

[1] For additional information on these two exemptions in the context of COVID-19 vaccination mandates, please see our April 9, 2021, Wilson Sonsini Alert, titled “Workplace COVID-19 Vaccination Policies: To Mandate, or Not to Mandate?”

[2] The last version of Texas House Bill 155 proposed to expand the permissible exemption reasons to “(1) the individual’s acquired immunity against COVID-19 through post-transmission recovery; (2) a medical condition; or (3) reasons of conscience, including a religious belief.” 

[3] The last version of Texas Senate Bill 51 proposed to expand the permissible exemption reasons to “a medical condition or reasons of conscience, including a religious belief.”

[4] For additional information on the President’s plan, please see our September 10, 2021, Wilson Sonsini Alert, titled “What Employers Should Know about President Biden’s ‘Path Out of the Pandemic’ Action Plan.”