On Oct. 11, Governor Greg Abbott issued Executive Order No. GA-40, the first COVID-19-related order that prevents private employers in Texas from requiring employees to be vaccinated in some circumstances. Per the order, effective immediately "[n]o 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."
Governor Abbott's order comes at the heels of President Biden's recently announced COVID-19 Action Plan, which includes required vaccinations for millions of employees of contractors that do business with the federal government and health care workers at Medicare and Medicaid participating hospitals and other health care settings. GA-40 further creates limbo for those Texas employers who are also preparing for the anticipated Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring private employers with 100 or more employees to mandate vaccination or weekly testing for their unvaccinated employees.
Even for Texas employers not impacted by federal plans and requirements, GA-40 creates other unanswered questions. The language of the order is ambiguous as to whether a Texas employer may require a COVID-19 vaccine of an employee who objects for reason of "personal conscience" alone without objection to a required vaccine based on religious belief or medical reasons. It further calls into question whether private Texas employers may deny any employee's religious- or disability-based exemption due to an undue hardship for the employer or because of a direct threat posed by the employee or others.
The order states failure to comply with GA-40 may result in fines not to exceed $1,000, but it is unclear how GA-40 will be implemented. One thing that is certain is COVID-19-related developments at local, state and national levels will continue, and employers should continue to evaluate their policies.
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