Will the Texas Ban on COVID-19 Vaccine Mandates Hold Up in Court?

Texas Gov. Greg Abbott recently made headlines when he signed an executive order banning employers (and other entities) from enforcing COVID-19 vaccination mandates if employees object for a broader range of reasons than federal directives allow. The order will likely be challenged in court by the federal government and businesses that want to mandate vaccination. Here are some of the legal arguments employment law attorneys expect to see.  

Federal Pre-Emption

Employment law attorneys expect the Texas order—and any other orders that conflict with federal rules—to be challenged in court. "It's hard to see how the executive order holds up," said Aaron Goldstein, an attorney with Dorsey & Whitney in Seattle.

He said Abbott's order will probably be challenged as exceeding the governor's authority or pre-empted by federal vaccination requirements as they take effect.

According to the Texas order, "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."

Businesses that fail to comply with the order may face fines of up to $1,000 per violation.

However, President Joe Biden's Executive Order 14042 will require federal employees to be fully vaccinated against COVID-19 by Nov. 22; federal contractors must be vaccinated by Dec. 8. The order includes very limited exceptions for workers with objections based on a disability, medical condition or sincerely held religious belief.

If employers are covered by the president's order for federal contractors or subcontractors, they should note that the Texas order will likely be pre-empted because of its conflicting provisions, noted Mini Kapoor, an attorney with Haynes Boone in Houston.

Additionally, businesses with at least 100 employees will be covered by a forthcoming Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration (OSHA), which will require covered employers to ensure employees get vaccinated or submit to regular COVID-19 testing.

This federal mandate would likely pre-empt the Texas order, too, Kapoor said. The Texas order provides an exception to vaccination based on "personal conscience." While this term is not defined in the Texas order, she said, it essentially provides an additional exemption that is not expected to be in OSHA's mandate, and so, the broader exception erodes the minimal level of protection required by federal OSHA.

Kapoor noted that OSHA's standard may not cover employers with less than 100 employees, and many employers are not covered by the president's order for federal contractors and subcontractors. Such employers may need to comply with the Texas order unless it is blocked.

The details and effective date of OSHA's ETS are still being worked out between the agency and the White House, so there's no conflict between OSHA rules and the Texas order just yet. OSHA's existing COVID-19 ETS for health care employers doesn't mandate vaccination.

The Texas Disaster Act

The executive order was issued under the Texas Disaster Act, which grants the governor and state and local agencies certain powers to "reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, or hostile military or paramilitary action."

Goldstein said a ban on vaccine mandates doesn't seem to fit that purpose and is arguably contrary to that purpose.

The Texas Disaster Act also limits the governor's authority to issue orders that "interfere with the course or conduct of a labor dispute" unless such action is necessary to "forestall or mitigate imminent or existing danger to public health or safety."

Challengers will likely argue that limiting an entity's ability to impose conditions of employment, such as vaccine mandates, is a labor issue outside of the reach of the governor's authority, said Jacqueline Del Villar, an attorney with Fisher Phillips in Houston.

Challengers may argue that Abbott has not shown that vaccination mandates pose a danger to public health or safety, particularly in light of his statement that "the COVID-19 vaccine is safe, effective and our best defense against the virus." However, Abbott added that vaccination should "remain voluntary and never forced."

Other leaders in the state also have said that employees should not have to choose between getting vaccinated or fired. "The governor has made it very clear—the way through the pandemic is through personal responsibility, not government mandates," said Texas Attorney General Ken Paxton.

Abbott urged state lawmakers to pass legislation that aligns with his order, and he set the order to expire when such legislation takes effect. However, bills in the Texas House of Representatives and Senate recently failed to secure enough votes.

Some Texas lawmakers said businesses should be able to choose whether or not to enforce a mandate, reported The Texas Tribune.

At-Will Employment Considerations

Courts may also consider how at-will employment status impacts Abbott's order. Under the employment-at-will doctrine, either the business or the worker can terminate the employment relationship at any time and for any lawful reason. 

Del Villar noted that the Texas order creates an ambiguity by banning entities from "compelling" anyone to get vaccinated, rather than banning entities from requiring vaccination as a condition of employment.

Considering the Texas' at-will employment environment and the narrow availability of a "wrongful termination" cause of action in Texas, it is not clear that an employer "compels" an individual to be vaccinated by making it a condition of employment, she explained, noting that similar arguments have been rejected in a Texas federal court.

"In view of these issues, employers are taking various approaches, which can vary depending upon the nature of their businesses, their current policies and which federal rules are applicable to them," Del Villar observed.

Regardless of what happens with the Texas order, Kapoor said, employers should continue to strongly encourage vaccination in the workplace and follow safety recommendations from the U.S. Centers for Disease Control and Prevention.