October 14, 2021

Texas just banned Covid-19 vaccine mandates. Is that legal?

Daily Briefing

    Texas on Monday banned Covid-19 vaccine mandates from all entities in the state in opposition to President Joe Biden's federal vaccine mandate for U.S. workers. But several large employers in the state have voiced support for the federal mandate and said they will continue to require their employees to be vaccinated.

    Resource library: How health care organizations can navigate vaccination mandates and other issues in the post-pandemic world

    Texas bans all Covid-19 vaccine mandates

    Texas Gov. Greg Abbott (R) on Monday issued an executive order banning any entity, including private employers, from requiring its employees or customers to be vaccinated against Covid-19, the Wall Street Journal reports. The order expands on a previous ban in the state, which barred governmental entities and entities receiving public funding from enacting vaccine mandates.

    "The Covid-19 vaccine is safe, effective, and our best defense against the virus, but should remain voluntary and never forced," Abbott said.

    According to the Journal, Abbott's executive order states Biden's federal vaccine mandate for employees "bull[ies] many private entities into imposing Covid-19 vaccine mandates."

    Under the federal mandate, all employers with at least 100 employees will be required to vaccinate their employees against Covid-19 or have them tested weekly. Businesses that do not comply could face up to $14,000 in fines for every violation. In total, around 100 million workers—or roughly two-thirds of all U.S. workers—will be covered by the federal mandate.

    Currently, Occupational Safety and Health Administration (OSHA) is reviewing the requirements of the federal mandate and is expected to issue regulations in the next few weeks, Politico reports.

    So far, Texas and several other Republican-led states have opposed federal vaccine mandates, saying they will "seek every available legal option" against the requirements, the Journal reports. However, most major businesses in the state support federal vaccination requirements for their employees.

    For example, the Greater Houston Partnership, which represents around 900 companies including Exxon Mobil, JPMorgan Chase, Chevron, and Accenture, has been generally supportive of the Biden administration's vaccine requirements and said Abbott's order would make it harder for businesses in Texas to operate safely.

    According to Bob Harvey, CEO of the Greater Houston Partnership, most major businesses represented by the organization support a federal mandate because it would shift the responsibility of enforcing workplace safety measures away from businesses and eliminate competition between businesses based on vaccine requirements.

    In addition, Harvey said most business owners opposing the federal mandate were those worried about losing employees in their primarily rural workforce due to vaccine requirements.

    'Federal action supersedes any state mandate or law'

    Southwest Airlines and American Airlines, both based in Texas, on Tuesday said they still plan to require employees to be vaccinated against Covid-19 despite Abbott's executive order, Politico reports.

    "Federal action supersedes any state mandate or law," a Southwest spokesperson said, "and we would be expected to comply with the president's order to remain compliant as a federal contractor."

    The spokesperson added that the company is "reviewing all guidance issued on the vaccine" and will "continue to follow all orders closely and keep [its] employees updated on any potential changes to existing policies."

    American Airlines also said it is reviewing Abbott's order and that company officials currently "believe the federal vaccine mandate supersedes any conflicting state laws, and this does not change anything for American."

    When asked for a response to Abbott's order, the White House pointed to guidance on vaccine mandates for government contractors issued by the Office of Management and Budget. According to Politico, the guidance requirements applicable to federal contractors and subcontractors "are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance," and "nothing in this guidance shall excuse noncompliance with any applicable state law or municipal ordinance."

    In addition, White House press secretary Jen Psaki said the federal vaccine mandates' legality is "unquestionable" and that Abbott is "just playing politics," Politico reports.

    "Bottom line is we're going to continue to implement the law, which the President of the United States has the ability, the authority—the legal authority to do, and we are going to continue to work to get more people vaccinated, to get out of this pandemic," Psaki said. "The President will use every lever at his disposal to do that." (Findell, Wall Street Journal, 10/12; Harrison/Findell, Wall Street Journal, 10/13; Saric, Axios, 10/12; Pawlyk, Politico, 10/12)

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