October 22, 2021

Volume XI, Number 295

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New Texas Executive Order Bans Vaccine Mandates for Private Employers

On October 11, 2021, Governor Abbott issued Executive Order GA-40, stating that no entity in Texas (including private employers and businesses) can compel COVID-19 vaccination by any individual, including an employee or consumer who objects to such vaccination because of (1) personal conscience, (2) religious belief, or (3) medical reasons, including prior recovery from COVID-19. Entities that fail to comply with this order may be fined up to $1,000.

The order expressly states that it was enacted in response to the Biden Administration. Last month, the Biden Administration implemented various vaccine mandates for certain employers, including health care facilities that receive funds from the Medicare or Medicaid reimbursement program, federal contractors, and employers with 100 or more employees (once OSHA’s forthcoming Emergency Temporary Standard is issued). In turn, there will likely soon be legal challenges to the scope of the Executive Order—including whether it is preempted by conflicting federal mandates.

While the Executive Order allows non-compliant entities to be fined, the order does not expressly address any workplace protections or rights. For example, if an employee is terminated for refusal to comply with an employer’s vaccine mandate (unrelated to a religious and medical exemption), does he or she now have legal recourse? Following the issuance of this Executive Order, discharged employees may attempt to bring what is known as a Sabine Pilot claim. This public policy claim is extremely narrow in application and generally only applies in instances where an employee is terminated for the refusal to perform an illegal act that carries criminal penalties—a scenario that such employees may have difficulty establishing in this context.

Additionally, the Executive Order also leaves unanswered whether an employer’s vaccination policy is unlawful in instances where employees have the option to undergo weekly testing in lieu of receiving a COVID-19 vaccine. In a similar scenario, some commercial operators (e.g., concert venues) have sought to avoid Texas’ prohibition on requiring consumers to show proof of a COVID-19 vaccination, by allowing consumers the option to instead produce a negative COVID-19 test.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 285
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About this Author

Jason Weber Employment Litigation attorney Polsinelli Dallas Texas
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Jason Weber is an attorney in the Employment Litigation practice and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He focuses his practice on business disputes and employment-related consulting and litigation. He has represented Fortune 500 companies, middle-market firms, small businesses and individuals in Texas state courts, federal courts, administrative tribunals and alternative dispute resolution forums. Jason’s experience includes defending management and providing guidance on a variety of employment issues including age, disability and...

214-754-5741
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