On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the “Order”) prohibiting vaccine mandates by any entity. The Order, which was effective upon issuance, states: “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.” It provides for a maximum fine of up to $1,000 per violation for any failure to comply with the order. In addition, it suspends the powers of the state’s emergency management director and the authority of local officials, including the Department of State Health Services’ preemptive authority, with respect to the declaration of local disasters and coordination or control of public health emergencies, to the extent necessary to ensure they do not impose restrictions that are inconsistent with the Order.

The Order is intended to remain in effect until Texas lawmakers pass legislation on the subject. To that end, Gov. Abbott has asked that the issue be added as an item to the third legislative special session, which ends on October 19, 2021.

The Order’s preamble strongly encourages COVID-19 vaccines for those who are eligible to receive vaccination, but asserts that vaccination must be voluntary for Texans and goes on to characterize the Biden Administration’s vaccination policy as “yet another instance of federal overreach” that is “now bullying many private entities into imposing COVID-19 vaccine mandates.”

This newest executive order currently leaves open the question of whether its prohibition of vaccine mandates by employers creates an impermissible conflict with federal vaccination mandates, including the federal contractor vaccine program and the anticipated Emergency Temporary Standard to be issued by the Occupational Safety and Health Administration. For now, Texas employers contemplating vaccine mandates or making decisions based on employees’ refusal to get vaccinated will be constrained to walk a fine line to maintain state and federal compliance.  We are continuing to track updates regarding this Order, as well as any legislative developments that would lend more insight and guidance.