The executive order seeks to prevent county judges, mayors and school board officials from drafting policies that would require “any entity” to impose vaccines against COVID-19. The order does not say how, or if, it will try to remove vaccine requirements enacted by the Federal Government or from businesses and organizations that want them. Rather, it applies to “local officials” and prevents them from imposing vaccine mandates as they deal with the pandemic.
Importantly, if Governor Abbott tries to apply the order to private businesses directly, he will face a certain legal challenge from the Department of Justice.
The law appears to clarify state laws and ordinances and does not explicitly seek to override federal mandates or upcoming OSHA rules, which would presumably remain in effect. However, future state legislation could trigger a conflict between the state and federal government depending on how the Texas legislature responds to Abbott’s call to codify the executive order into law.
“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,” Abbott states in the order.
The order states that it is intended to “supersede any conflicting order issued by local officials in response to the COVID-19 disaster,” and “to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order.” It does not mention how the new policy would interact with Biden Administration rules, including those that require vaccinations at companies with more than 100 employees. While not mentioning the conflicting federal rules directly, the order could still invite court challenges intended to reinforce the supremacy of federal law.
Abbott is calling for the Texas Legislature to enshrine the executive order into law. The Texas Legislature is currently in its third special session.
Violators who fail to comply with the order will face the “maximum fine allowed” under Texas law but will not face jail or prison time.
Texas is home to American Airlines and Southwest Airlines, which have implemented the same types of vaccine mandates that Abbott is seeking to ban. Other major companies based in the state, including Google and Facebook, also have mandated vaccines. The companies have not responded to Abbott’s Executive Order as of Tuesday morning.
The position of the International Association of Machinists and Aerospace Workers union is that vaccine mandates are unnecessarily controversial and should not be used until a good-faith effort to employ incentives has been tried first. Throughout this process, United Airlines has failed to provide clear communications and a consistent policy towards vaccinations. The IAMAW demands that vaccine mandates go through the collective bargaining process.
A prior executive order by Governor Abbott banned Texas school districts and other government entities from requiring COVID -19 vaccinations for students. Texas is approaching 67,000 COVID-19 related deaths and has one of the highest rates of hospitalizations.
In September, the Biden Administration ordered the Occupational Safety and Health Administration (OSHA) to draft safety rules that would require employee vaccinations at businesses with more than 100 employees. The Administration also began drafting policies requiring federal contractors to have vaccine mandates in place. Earlier this month, American Airlines and Southwest Airlines, who both hold government contracts, announced that they would comply with the upcoming OSHA rules when they are released.
Article 6 of the US Constitution states that federal laws (and the Constitution itself) shall be the “supreme law of the land,” and that no state laws can override a federal law or the Constitution.
While the Supremacy Clause ensures that the federal laws would prevail over Abbott’s executive order if challenged, some areas of Constitutional law have rarely been tested in courts. One such area involves how companies make accommodations for those with medical or religious requirements that prevent them from getting vaccinated. United Airlines is facing a lawsuit seeking to expand its “Reasonable Accomodation” program to include regular testing and masking as options for those who cannot be vaccinated. Currently, the airline is taking these employees off the clock while developing policies to safely return them to the greater workforce, amounting to an indefinite unpaid suspension. United Airlines has issued statements indicating that more than 97% of employees are vaccinated.
Texas Governor Greg Abbott is currently running for re-election against challenger Allen West. Both men have recently contracted mild cases of COVID-19. Abbott is vaccinated, while West is not.
