Vaccine mandates aren’t popular in Texas. Here’s how pending legal fights affect you
A battle between Texas lawmakers and President Joe Biden’s administration over vaccine mandates has left some Texas residents, employers and businesses confused about whether they fall under any requirement to get a COVID-19 vaccine.
Republican Gov. Greg Abbott has fiercely opposed vaccine mandates, taking action against them through executive orders. “As long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine,” Abbott said in a Jan. 4 letter.
But there are some Texans who do have to be vaccinated today. And court rulings in several pending cases in 2022 could add to that number (or subtract from it).
Can private employers in Texas mandate vaccines?
Yes, but restrictions under state law apply. Workplaces can mandate vaccination as long as they allow for certain exemptions.
On Oct. 11, Abbott issued an executive order stating that “no entity in Texas can compel” an employee or consumer to receive a COVID-19 vaccine if that person objects to vaccination for any of three reasons.
Under Abbott’s executive order, employers can’t make a worker get vaccinated if he or she “objects for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Each violation can result in employers facing fines up to $1,000.
“Even though the employer may have a mandatory vaccination policy in place, it might not be of much consequence, because anybody can say, for whatever reason, I don’t want to take the vaccinations. It defeats the purpose of having such a policy,” said Mini Kapoor, an attorney with Haynes and Boone LLP in Houston. “So it just doesn’t make any sense when you have such a broad exemption that will just eat up the policy itself.”
Other workplaces may encourage or incentivize vaccination instead of requiring it. For example, they can institute a policy of weekly COVID testing for those who are unvaccinated.
“Texas law does not stop employers for instituting a policy where they’ll say everybody has to be tested every week,” Kapoor said.
Do large companies in Texas require vaccinations?
No.
A federal vaccine mandate for large private businesses was blocked by the Supreme Court in January. The Occupational Safety and Health Administration rule had required all employers with 100 or more workers to either ensure their staffs were vaccinated or require unvaccinated people to produce a weekly negative test result before coming to work.
The court, in a 6-3 decision, ordered a stay of the mandate in the case National Federation of Independent Business v. OSHA. The ruling concluded that the vaccine-or-test requirement was a “significant encroachment into the lives — and health — of a vast number of employees.”
Note: the Supreme Court decision does not bar large private employers from having a mandatory vaccination policy, as long as they allow for exemptions per Abbott’s executive order.
“There is not a federal rule in place right now that requires employers or workplaces to have a mandatory vaccination policy,” Kapoor said. “But that ruling from the Supreme Court does not stop employers from instituting a policy like that.”
OSHA announced it withdrew the emergency temporary standard on Jan. 25 but is working on finalizing a permanent COVID-19 healthcare standard. That could mean a narrower long-lasting rule that aims to protect workers nationwide from the coronavirus. By comparison, an ETS would have been effective only until superseded by a permanent standard within six months.
Until then, Kapoor says, employers are still obligated to protect their teams from COVID-19.
“Although the (emergency temporary standard) is gone, OSHA is still going to do enforcement via its general duty clause — an employer’s obligation to provide a safe workplace to its employees,” Kapoor said.
Can Texas businesses require customers to be vaccinated?
No. Texas businesses cannot require customers to provide proof of vaccination for entry or service.
Abbott announced on Twitter in June that he had signed a law banning Texas businesses from requiring customers provide “vaccine passports,” documentation proving they had received the shots. The state law does not ban businesses from requiring vaccine passports from employees and employers. Businesses that violate this rule will be ineligible to receive state grants or state contracts, according to Fisher Phillips.
Are Texas healthcare workers required to get vaccinated?
Yes, but not all of them. About 17 million healthcare workers nationwide are now required to get vaccinated.
In a separate ruling in January, the Supreme Court in Biden v. Missouri allowed to stand a vaccine mandate for medical facilities such as hospitals and nursing homes that take Medicare or Medicaid payments. The majority opinion said: “We agree with the Government that the (Health and Human Services) Secretary’s rule falls within the authorities that Congress has conferred upon him.
“After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”
Many hospitals had already required employees to comply with a vaccine mandate. Houston Methodist was one of the first big hospitals in Texas to make COVID-19 vaccines mandatory for everyone who works there. Last year, it gave hospitalists until Apr. 15 to get at least one dose of the vaccine or get an approved exemption.
Other healthcare facilities receiving federal funding must comply by deadlines set by the Centers for Medicare & Medicaid Services:
- By Feb. 19, Medicare- or Medicaid-covered facilities in Texas must have their vaccination processes and plans in place, and all staff must at least have taken their first dose of a vaccine or have a pending exemption;
- By March 21, all staff must be fully vaccinated against COVID-19 or have received an exemption.
The Supreme Court ruled on an emergency motion and hasn’t ruled on the merits of the case. It’s likely that the mandate will survive, Kapoor says.
“The way the court has ruled on the emergency motion is an indication that it would survive on the merits. I think that will be the final outcome,” Kapoor said.
Do federal workers in Texas have to get vaccinated?
No, but that could change.
On Jan. 21, a federal judge in Texas ordered a temporary halt to the Biden administration’s vaccine mandate for federal workers. Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas, said the government is “enjoined from implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”
Biden announced in September that more than 3.5 million federal workers were required to undergo vaccination with no option to get regularly tested, unless they had medical or religious exemptions. The White House has said that at least 98% of federal workers are vaccinated. The Justice Department is appealing Brown’s ruling.
As for federal contractors and subcontractors, a vaccine mandate also is not currently in effect.
The Supreme Court will eventually hear these cases.
Can Texas school districts require teachers to get vaccinated?
No.
Texas school districts cannot require teachers to be vaccinated against COVID-19, according to Education Week. Abbott issued an executive order in August saying that “no governmental entity can compel any individual to receive a COVID-19 vaccine.”
Neither can Head Start, the federal early childhood education program. In January, Texas Attorney General Ken Paxton obtained a statewide preliminary injunction from a Lubbock federal District Court judge that immediately halted implementation of the administration’s mandate requiring Head Start staff to get vaccinated.
Are National Guard members required to get vaccinated?
Yes, but that could change.
All military service members are required to get vaccinated, Defense Secretary Lloyd Austin announced Aug. 24.
On Jan. 19, the Texas attorney general sued the administration over a vaccine mandate for the Texas Army National Guard and the Texas Air National Guard. A temporary halt on the mandate could soon be granted.
