Note We have received a lot of questions about two sets of recent executive orders. One is Governor Abbott's Executive Order GA-40. This order prohibits any entity in Texas from requiring COVID-19 vaccines. The other is President Biden's executive orders and proposed federal regulations. These require vaccines or regular COVID-19 testing for many federal workers, federal contractors, and private employees.
There are several lawsuits pending that may affect the status of these orders. Texas has filed lawsuits against various federal agencies over the Biden administration's COVID-19 vaccine mandates for federal contractors, healthcare workers, and employers with more than 100 employees. The OSHA requirements for employers with more than 100 workers were recently paused in a ruling from the 5th Circuit Court of Appeals, and the mandate for certain healthcare workers has also been paused by a preliminary injunction from the U.S. District Court for the Western District of Louisiana.
As librarians, we are unable to comment on what conflicting state and federal orders and regulations mean for a given situation. You should consider talking to an attorney for help if you have questions about how the law affects your situation.
In general, Texas is what's referred to as an employment-at-will state. With certain exceptions, the employer has the right to change the terms and conditions of the job. The employer or employee can also end the employment relationship at any time and for any reason unless an employment contract or law says otherwise.
On October 11th, 2021, Governor Abbott issued Executive Order GA-40. This executive order prohibits any entity in Texas from requiring a person to get a COVID-19 vaccine if they have objections:
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.
A person who violates the order cannot be jailed for the violation. They may have to pay a fine of $1,000 — the maximum allowed under Texas Government Code Section 418.173. The order does not say how violations should be reported. It also does not say who is responsible for enforcing the order.
Governor Abbott also asked the Texas legislature to enact state laws about whether a state or local government can mandate a COVID-19 vaccine. This topic was added to the agenda of the Third Called Session of the 87th Legislature, but no law was passed.
There are several federal COVID-19 vaccine mandates currently in place for various types of workers.
Note Several pending lawsuits may affect the status of these orders. Texas has filed lawsuits against various federal agencies over the Biden administration's COVID-19 vaccine mandates for federal contractors, healthcare workers, and employers with more than 100 employees. Additionally, the OSHA requirements for employers with more than 100 workers were recently paused in a ruling from the 5th Circuit Court of Appeals.
On September 9th, 2021, President Biden issued an executive order that requires some federal employees to be vaccinated against COVID-19. The order only applies to employees of the federal executive branch. The order allows for some exceptions. According to guidance from the Safer Federal Workforce Task Force, workers must be fully vaccinated by November 22, 2021. Federal executive branch agencies must create a program to ensure that all their employees are vaccinated against COVID-19 by the deadline.
President Biden also issued Executive Order 1404 on September 9, 2021. This order requires all federal contractors and subcontractors to comply with COVID-19 workplace safety guidance from the Safer Federal Workforce Task Force.
All covered contractor employees must be fully vaccinated against COVID-19 by January 4th, 2021 (this date was pushed back from the initial date of December 8th, 2021). Employees with disabilities, medical conditions, or religious beliefs that prevent vaccination can request accommodations.
On September 9, 2021, the Centers for Medicare & Medicaid Services (CMS) announced that it was expanding emergency regulations related to COVID-19 vaccines.
Under the new CMS rule, employees of facilities that participate in Medicare and Medicaid will need to be vaccinated against COVID-19 by January 4th, 2022. Examples of these facilities include nursing homes, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.
Note At this time, the OSHA rule for employers with more than 100 workers has been paused by a ruling from the 5th Circuit Court of Appeals. OSHA stated on their website that they have "suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
In his COVID-19 Action Plan, President Biden directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) for employers with at least 100 employees. The new OSHA rule requires workers to:
Employees must receive their COVID-19 vaccinations by January 4th, 2022. Workers who remain unvaccinated are required to wear face coverings at work starting December 5th, 2021. Unvaccinated workers must also provide negative COVID-19 tests each week after January 4th, 2022 under the new rule. Employers are also required to offer paid time off for their employees to get vaccinated and sick leave to recover from any side effects.
The Equal Employment Opportunity Commission (EEOC) issued guidance to employers that generally supports an employer's ability to require proof of COVID-19 vaccination for workers physically present in the workplace:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.
An employer may need to offer reasonable accommodations for employees who aren't able to be vaccinated due to a disability or certain religious belief:
In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
Several recent Texas laws discuss "vaccine passports" or showing proof of COVID-19 vaccination.
Section 161.0085 of the Texas Health & Safety Code prohibits state and local governments from issuing documentation of a person's COVID-19 vaccination status:
(b) A governmental entity in this state may not issue a vaccine passport, vaccine pass, or other standardized documentation to certify an individual's COVID-19 vaccination status to a third party for a purpose other than health care or otherwise publish or share any individual's COVID-19 immunization record or similar health information for a purpose other than health care.
Section 161.0085 also says that businesses can't require proof of vaccination from their customers. Businesses that receive state funds or who are licensed by the state are at risk of losing their contracts or licensure if they require proof of vaccination:
(c) A business in this state may not require a customer to provide any documentation certifying the customer's COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business. A business that fails to comply with this subsection is not eligible to receive a grant or enter into a contract payable with state funds.
(d) Notwithstanding any other law, each appropriate state agency shall ensure that businesses in this state comply with Subsection (c) and may require compliance with that subsection as a condition for a license, permit, or other state authorization necessary for conducting business in this state.
However, this statute does not prevent Texas businesses from putting COVID-19 screening procedures in place:
(e) This section may not be construed to: (1) restrict a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health;
Additionally, Governor Abbott's Executive Order GA-39 from August 25th, 2021, also prohibits public and private entities that receive public funding from requiring consumers to provide proof of COVID-19 vaccination status:
Any public or private entity that is receiving or will receive public funds through any means, including grants, contracts, loans, or other disbursements of taxpayer money, shall not require a consumer to provide, as a condition of receiving any service or entering any place, documentation regarding the consumer’s vaccination status for any COVID-19 vaccine. No consumer may be denied entry to a facility financed in whole or in part by public funds for failure to provide documentation regarding the consumer’s vaccination status for any COVID-19 vaccine.