On October 11, 2021, Governor Abbott issued Executive Order GA-40, stating that no entity in Texas (including private employers and businesses) can compel COVID-19 vaccination by any individual, including an employee or consumer who objects to such vaccination because of (1) personal conscience, (2) religious belief, or (3) medical reasons, including prior recovery from COVID-19. Entities that fail to comply with this order may be fined up to $1,000.

The order expressly states that it was enacted in response to the Biden Administration. Last month, the Biden Administration implemented various vaccine mandates for certain employers, including health care facilities that receive funds from the Medicare or Medicaid reimbursement program, federal contractors, and employers with 100 or more employees (once OSHA’s forthcoming Emergency Temporary Standard is issued). In turn, there will likely soon be legal challenges to the scope of the Executive Order—including whether it is preempted by conflicting federal mandates.

While the Executive Order allows non-compliant entities to be fined, the order does not expressly address any workplace protections or rights. For example, if an employee is terminated for refusal to comply with an employer’s vaccine mandate (unrelated to a religious and medical exemption), does he or she now have legal recourse? Following the issuance of this Executive Order, discharged employees may attempt to bring what is known as a Sabine Pilot claim. This public policy claim is extremely narrow in application and generally only applies in instances where an employee is terminated for the refusal to perform an illegal act that carries criminal penalties—a scenario that such employees may have difficulty establishing in this context.

Additionally, the Executive Order also leaves unanswered whether an employer’s vaccination policy is unlawful in instances where employees have the option to undergo weekly testing in lieu of receiving a COVID-19 vaccine. In a similar scenario, some commercial operators (e.g., concert venues) have sought to avoid Texas’ prohibition on requiring consumers to show proof of a COVID-19 vaccination, by allowing consumers the option to instead produce a negative COVID-19 test.