Texas Governor Imposes “No Warrant” for COVID-19 Vaccination – Coronavirus (COVID-19)


Governor Abbott’s Executive Order

On October 11, 2021, Texas Governor Greg Abbott issued Executive Decree GA-40 (the Texas Order) banning COVID-19 vaccine warrants by any entity, including private employers, in Texas. Because the Texas order was issued while Texas remains in a state of emergency related to the pandemic, texas disaster law gives it force and effect of law. The Texas ordinance states that “no entity in Texas” may require the vaccination of anyone in the state who opposes it “for personal conscience, religious belief, or medical reasons, including including a previous recovery from COVID-19 “. “Personal conscience” is not defined, and this ambiguity in the Texas ordinance does not make it clear whether an individual can oppose the COVID-19 vaccine for reasons other than religion or those related to medicine. .

Violation of the Texas ordinance can result in a maximum fine of $ 1,000 per violation, but it is not clear whether this is a fine on a daily basis or per violation. The Texas order does not create a private right of action for workers, but employees of private employers could potentially seek legal intervention to enforce the Texas order by injunction.

Governor Abbott also sent a a message to the state legislature asking it to pass a law to the same effect. The Texas ordinance would not be repealed until this passage. Governor Abbott States this “[t]The COVID-19 vaccine is safe, effective, and our best defense against the virus, but must be voluntary and never forced. “

The news of the Order of Texas comes as a substantial reversal of Gov. Abbott’s previous position in August 2021, allowing private companies to choose to force vaccines on their workforce. It also follows the previous executive order that previously banned COVID-19 vaccine warrants by government agencies, cities, counties and school districts in Texas. In addition, the Texas legislature has already passed a law banning “vaccine passports” that prohibits companies from requiring proof of vaccination from their customers.

Conflict with Biden Executive Orders Regarding Federal Contractors, OSHA, and CMS

The Texas ordinance is a direct response to President Biden’s executive orders requiring COVID-19 vaccination for all federal employees and certain federal contractors by December 8, and a subsequent plan to force companies with more than 100 employees to require workers to be vaccinated or show a negative COVID-19 test at least once a week. Many Texas employers have already adopted vaccination mandates for their employees in light of President Biden’s COVID-19 action plan (the federal decree). The question becomes: what order are Texas employers supposed to follow?

Unlike the Texas Order, which explicitly prohibits vaccination warrants, the Federal Order orders various federal agencies to implement the COVID-19 vaccination plan. The U.S. Occupational Safety and Health Administration (OSHA) is responsible for developing and implementing the next Temporary Emergency Standard (ETS), which will require all employers with more than 100 employees to they make sure that their employees who come to a job site are either vaccinated or tested every week. . OSHA recently announced that a final version of the ETS has been sent to the White House for review, so we may see the ETS released in the next few days or weeks.

Likewise, the federal ordinance directs the Centers for Medicare & Medicaid Services (CMS) to promulgate rules to healthcare facilities that participate in Medicare and Medicaid programs. September 9, 2021, CMS announced that it planned to develop and publish an interim final rule with a comment period in October 2021. This rule would extend emergency regulations requiring vaccines to employees of nursing homes and employees of most other nursing homes. health care providers who participate in Medicare and Medicaid. To date, CMS has not released any additional information. An overview of the expected interim rule is available here. Failure to comply with the expected rule could result in the loss of CMS funding.

Recommendations for employers in Texas

The Texas ordinance has the force of law, while the federal ordinance, at present, is only a directive to agencies, at least until CMS and OSHA publish their rules. As such, the federal ordinance alone does not prevail over the Texas ordinance. Instead, individual federal agency rules will likely serve to preempt the Texas Order in the future. Until CMS or OSHA publishes their rules, employers must follow the Texas order, unless they fall under the rules of the Federal Entrepreneur Immunization Program discussed here. Until then, we recommend that most Texas employers end mandatory COVID-19 vaccination requirements, as there are currently no federal requirements to vaccinate employees. An alternative approach would be to encourage vaccination and provide testing alternatives, as this would allow Texas employees to remain unvaccinated at their discretion.

Since the vaccine rules for federal workers and federal contractors likely prevail over Governor Abbott’s order, employers subject to these rules should continue to comply with federal law to avoid the potential consequences associated with failure to do so. respect for these rules. Of note, Southwest Airlines and American Airlines, which are each based in Texas and have a contract with the federal government, have said they are moving forward with their plans to meet the December 8 deadline, regardless of the Texas ordinance.

It is important to note, however, that the Texas ordinance only states that employers cannot “compel receipt of a COVID-19 vaccine,” and does not explicitly prohibit employers from inquiring about vaccine status. of an employee or to take adverse action against an employee on the basis of a vaccine. status. Thus, this undoubtedly leaves the door open to a compulsory vaccination policy which does not oblige to “receive” the vaccine, because the employee is free to resign from his job. Additionally, a vaccine warrant with an alternate option for weekly testing, as in the federal ordinance, may comply with the Texas ordinance because it does not necessarily require you to receive a vaccine.

What does this mean to you

This is a fluid situation and the guidelines will be updated as federal and local government agencies respond. It is very likely that lawsuits will soon be filed to challenge the Texas ordinance. Until a court or agency renders a decision clarifying the matter, we recommend that Texas employers follow the Texas ordinance in most situations and stay tuned for further information in the weeks to come as this unfolds.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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