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Abbott vs. OSHA: 4 Key Considerations Amid Conflicting State Bans & Federal Vaccine Mandates

On October 11, 2021, Texas Gov. Greg Abbott issued an executive order that immediately limited employers’ ability to compel employees to receive the COVID-19 vaccine. Executive Order No. GA-40 reads:

“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.”

The Texas order calls for fines up to $1,000 per violation, although questions remain regarding enforcement. The order also appears to broadly apply to any business or employer with a presence in or doing business in Texas. Abbott intended his Executive Order to stand until the Texas legislature passed similar legislation during an October 2021 special session. However, Texas’ special session ended without any related legislation. The Executive Order stands then until Governor Abbott revises or rescinds the order.

Texas Vaccine Mandate Ban & Forthcoming Federal Laws Complicate Employer Compliance Efforts

Gov. Abbott’s executive order has real implications for employers. And because it appears to conflict with several vaccine mandates at the federal level, it creates confusion. Here are few things to know.

1. Executive Order GA-40 Expands Vaccine Objections

Abbott’s Executive Order GA-40 broadens permissible objections to COVID-19 vaccination. Per the order, “any reason of personal conscience” would allow employees to receive exemptions from employer-imposed vaccine mandates for just about any reason.

It also makes it easier for employees to object to vaccination for other reasons, such as a previous COVID-19 diagnosis, and more difficult for employers to avail themselves of key protections available under federal law, such as an employer’s ability to consider its own “undue hardship” or any “direct threat” to others in the workplace, both of which can justify non-accommodation.

2. Texas’ Executive Order GA-40 May Conflict with Federal Vaccine Mandates

Much of the confusion experienced by employers in the wake of Gov. Abbott’s executive order stems from its overlap with several federal laws.

  • OSHA Emergency Temporary Standard (ETS) Vaccine Mandate. Gov. Abbott’s order came less than a month before OSHA issued its COVID-19 Emergency Temporary Standard requiring employers with over 100 employees to mandate full vaccination or provide negative COVID test results at least once a week.
    • Though there is overlap, GA-40 may co-exist at least in part with OSHA’s rule, as the Emergency Temporary Standard does allow for employees to remain unvaccinated if they are tested weekly. However, unvaccinated employees are required to wear face coverings when indoors or in a vehicle with another person for work purposes, with limited exceptions.
    • How are employees counted? Officials have indicated that the 100-employee threshold applies to “all employers that have a total of at least 100 employees firm- or corporate-wide, at any time the ETS is in effect.”
    • The deadline to comply with this ETS is January 4, 2022.
    • UPDATE: On November 12, 2021, the Fifth Circuit Court of Appeals re-affirmed an order halting OSHA’s ETS until the court can conduct a full judicial review. A final review of the ETS will likely take place before the U.S. Supreme Court. While the OSHA ETS is stayed, employers do not have to comply with its terms. However, this order by the Fifth Circuit of Appeals does not impact the Federal Contractor Vaccine Mandate (EO-14042) or CMS' interim rule for healthcare workers.
    • UPDATE: On November 15, 2021, Gov. Abbott filed a petition in the U.S. Court of Appeals for the Fifth Circuit challenging OSHA's vaccine-or-test mandate and asked the court to rule that his Executive Order GA-40 not be superseded by OSHA’s ETS. All challenges to the OSHA rule will be consolidated and reviewed by a federal appeals court chosen by lottery. Regardless of which court reviews the case, it is expected to end up in Supreme Court. 
  • Federal Contractor Vaccine Mandate (EO-14042). Texas’ GA-40 may not be as reconcilable with President Biden’s Executive Order 14042, which requires all employees working on or in connection with a covered federal contract be fully vaccinated by January 4, 2022, except in limited circumstances. (Note: The original deadline of December 8, 2021 was revised to January 4, 2022 to align with the new OSHA and CMS rules.)
    • Per the government’s guidance on EO-14042, the federal mandate will “supersede any contrary State or local law or ordinance.”
    • UPDATE: On November 30, a federal district court in Kentucky issued a preliminary injunction temporarily halting enforcement of EO-14042 in Kentucky, Ohio, and Tennessee. If your entity is not in one of these states, such as Texas, you remain subject to the January 4 compliance deadline. 
  • CMS Health Care Worker Vaccine Mandate. Gov. Abbott’s order also conflicts with CMS’ expansion of emergency regulations mandating vaccinations for health care workers employed by Medicare- or Medicaid-funded facilities. The expansion includes hospitals, dialysis facilities, ambulatory surgical centers, hospices, long-term care facilities, psychiatric facilities, outpatient rehabilitation facilities, and home health agencies, among others, as a condition of participating in Medicare or Medicaid.
    • As in the case of OSHA’s ETS, federal law generally supersedes state or local law, but legal challenges are likely.
    • The deadline to comply with this order is January 4, 2022.
    • UPDATE: On November 30, a federal district court in Louisiana issued a preliminary injunction temporarily halting enforcement of the CMS vaccine mandate for health care workers. The federal government is expected to act quickly to appeal to have the injunction overturned. While federal law pre-empts state vaccine-related orders, this preemption does not apply while the mandate is enjoined.  

3. Updated EEOC Guidance Can Help Employers

In anticipation of OSHA’s ETS and CMS’ emergency regulation, the EEOC released updated guidance to help employers as they create vaccine policies and address other issues involving COVID-19 and the rights of workers. Some key considerations in the guidance include:

  • Reasonable accommodations. The EEOC maintains that employers can impose vaccine requirements for their workforce, provided they make reasonable accommodations when necessary. Under federal law (the Americans with Disabilities Act and Title VII of the Civil Rights Act), employers are obligated to provide reasonable accommodations for sincerely held religious beliefs and for disabilities. Specifically, employers must grant 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
    • 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.
    • Additionally, employers should consider if any policies unfairly affect certain worker groups based on protected class.
    • Who is responsible for granting accommodations? Per federal law, it is the employer’s responsibility to make accommodation determinations.
    • UPDATE: On October 25, the EEOC updated its technical assistance to employers to clarify that "objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as 'religious beliefs' under Title VII."
  • Vaccination status information. Employers may inquire about employee vaccination status to confirm compliance with company policy but should refrain from asking follow-up questions. Keep in mind that proof of vaccination is considered medical information and must be kept confidential and not used to make employment decisions.
  • Encouraging vaccination. According to the EEOC, employers can encourage employees to get vaccinated by disseminating information materials about vaccine safety and efficacy or by making vaccines available to employees with the help of health care providers. While employers can freely incentivize employee vaccination from health care providers with whom they have no affiliation, there are limitations to incentivizing vaccination administered by the employer itself.

4. State and Federal Orders Will Be Challenged, But Employers Need to Address Compliance Now

Texas’ Executive Order GA-40 will undoubtedly be challenged in the courts, as have the federal mandates. And while decisions in that arena may eventually provide clarity, employers should not wait to address matters of compliance and internal policies regarding employee vaccination or other COVID-19 protocols.

With the help of experienced counsel, employers can effectively tailor their compliance efforts to the size of their business and their industry and in consideration of current laws and regulations that currently or will foreseeably apply to their workplace. In other words, be prepared to put a policy and compliance plan in place should the stay be lifted. 

Experienced Business Counsel for COVID-19 Vaccine Compliance

Gov. Abbott’s order creates additional challenges for employers who need to decipher what are already complex regulations and emergency standards being passed by the federal government – especially as many struggle to manage labor shortages, supply chain problems, and other pandemic-related fallout.

Amid the storm of contradictions and concerns, employers have all the more reason to consult legal counsel to construct vaccine policies and ensure compliance until the law becomes more defined.

At Hendershot Cowart P.C., our OSHA team has counseled numerous employers and government contractors in matters of regulatory compliance, including compliance with standards arising from the pandemic. Call (713) 489-2028 or contact us online to speak with an attorney.

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