As Texas Governor Bans Certain Vaccination Mandates, Conflicts May Arise with Federal Requirements Anticipated for Private Employers and Those Already in Place for Federal Contractors
What: Texas Ban Potentially Conflicts with Federal Requirements
"The state executive order has the potential to conflict with federal vaccination requirements anticipated for private employers and those already in place for federal contractors. To the extent that the governor's order conflicts with federal government requirements, businesses that rely on federal funding or reimbursement, such as health care, energy, agriculture, and transportation, may be put into a difficult position—accept federal assistance or comply with the
Potentially Conflicting Federal Requirements:
Governor Abbott'sexecutive order comes, at least partly, in response to President Joe Biden'splan announced on September 9to require all employers with 100 or more employees to ensure their workforces are fully vaccinated, or show a negative test at least once a week. Because the U.S. Department of Laborhas not yet issued the planned emergency rule, it is unknown whether, and to what extent, that federal rule will conflict with Governor Abbott'sexecutive order. Notably, though, President Biden'splan includes the option of requiring a negative test at least once a week for those who remain unvaccinated, an option that may alleviate any conflict with the TexasGovernor's executive order.
Businesses that contract with the federal government will also face difficulty because they must meet federal requirements that contractor employees be fully vaccinated no later than
December 8, 2021, or on the first day of a new, renewed, or extended contract. There are accommodations under those requirements for contractor employees who are not vaccinated due to a disability or a sincerely held religious belief, practice, or observance. However, there is no exception to mandatory vaccination due to "a reason of personal conscience," as provided in Governor Abbott'sexecutive order.
Supersedes Conflicting Orders and State Statues:
Governor Abbott'sexecutive order is crafted to supersede any conflicting order issued by local officials in response to the COVID-19 disaster. The order suspends Sections 418.1015(b) and 418.108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Healthand Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with his latest executive order.
Governor Abbott'sJustifications: The governor's executive order cites several rationalizations for his prohibition on private employer vaccine mandates, including:
- His previous series of orders aimed at protecting the health and safety of Texans, ensuring uniformity throughout the state and achieving the least restrictive means of combatting the evolving public health threat.
- That COVID-19 vaccines "are strongly encouraged for those eligible to receive one, but must always be voluntary for Texans."
- His prior orders prohibiting governmental entities and certain others from imposing COVID-19 vaccine mandates or requiring vaccine passports.
- Federal government overreach: "the
Biden Administrationis now bullying many private entities into imposing COVID-19 vaccine mandates, causing workforce disruptions that threaten the state's continued recovery from the COVID-19 disaster."
- Texans who "fear losing their livelihoods because they object to receiving a COVID-19 vaccination for reasons of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19."
Legislature's Primary Role Over Immunizations: Governor
Greg Abbottalso noted that via Chapter 161 of the Texas Healthand Safety Code and other laws, including Chapters 38 and 51 of the Texas Education Code, the legislature has established its primary role over immunizations, and that all immunization laws and regulations in Texasstem from the laws established by the legislature. Further, the legislature has provided exemptions permitting people to opt out of mandatory vaccination for reasons of conscience or medical reasons.
October 11, Abbott sent a letter to the Chief Clerk of the House and Secretary of the Senateadding this vaccination issue as an item to the Third Special Session agenda so that it can be considered for legislation. The governor said that this latest executive order will be rescinded upon the passage of such legislation.
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