News & Insights

Recent Posts

Covid-19: Assessing the Legal Risk of Infectious Diseases

WSHB Employer Alert: FFCRA and DOL Regulations 4.2.20

Employment Practices Consultation & COVID-19

It’s a No-Win Situation: The Perils Facing Hospitals Due to the Coronavirus

COVID-19 Employer Alert: Summary of the CARES Act

COVID-19: New York Malpractice Law Alert

COVID-19 Employer Alert: Enactment of Families First Coronavirus Response Act (FFCRA)

WSHB Co-Founder Stephen Henning to Announce the Winner of CLM's 2020 Outside Counsel Professional of the Year Award

WSHB Partner Robert Hellner Shares Mediation Tactics at CLM’s 2020 Annual Conference

Risk Transfer and Contractual Indemnification – Who Gets Left Holding the Bag?

New Developments in Challenging Certificates of Merit — Seeking Dismissal for Failure to Concurrently File Certificate with the Original Petition

Seven Habits that Define a Highly Effective Claims Team

Social Media Do's and Don'ts

WSHB Partner Kelly Waters Named to NJBIZ's 2020 Best Fifty Women in Business List

WSHB Names Andrew S. Kessler as Managing Partner of the Firm's Philadelphia Office

WSHB Employment Alert: California Law Banning Arbitration Agreements Temporarily on Hold

Sam McDermott on the Dos and Don’ts of Construction Project Termination

Full Disclosure! Insurer Beware: Colorado’s New Automobile Policy Disclosure Law Has Teeth!

Andrew S. Kessler Named Legal Counsel for Northeast Community Center for Behavioral Health

WSHB Elevates Ten Partners to Defined Equity Status

Eleven WSHB Attorneys Elected Into Partnership

Eighteen Attorneys Elected to WSHB Senior Counsel

Supreme Court Allows Suit Over Website Accessibility

Strategies for Defending Legionella and Mold Claims

Residential Revolution

Time Limit Demand Issues Arrive in North Carolina

Temp Agency Absolved of Liability in Hotly Contested Action

Alternative Fee Agreements and Construction Issues: Oil and Water or Perfect Pairing!?

WSHB's Graham Miller Helps Demystify Construction Claims in the Pacific Northwest

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

Update: Mind the Gap: California Assembly Bill 2756 Amends Insurance Code to Bridge Gaps in Coverage

Update: Expanded Protections in the California Insurance Code Amidst Wildfire Property Loss in California

Virtual Building Inspections: Timesaver or Liability Trap?

Texas Employer Conundrum: Conflicting State and Federal Rules on Vaccine Mandates

Texas Employer Conundrum: Conflicting State and Federal Rules on Vaccine Mandates

October 13, 2021

On October 11, 2021, Texas Governor Gregg Abbott issued an Executive Order banning COVID-19 vaccine mandates for all entities in the state, including private businesses, for both employees as well as patrons, subject to a fine up to $1,000. Abbott’s Order is an extension of his prior order banning mask mandates in schools and was issued in response to President Biden’s Executive Order mandating vaccinations for certain businesses.

Conflict with Federal Law

On September 9, 2021, President Biden announced sweeping new regulations that will impact federal workers as well as some private businesses in an effort to combat COVID-19 and the Delta variant. Coined “The Path out of the Pandemic”, the Department of Labor’s Occupational Safety and Health Administration (OSHA) will issue an emergency rule that requires employers with 100 employees or more to mandate vaccinations of all employees or, subject to medical or religious exemptions, require weekly testing for COVID. In addition, the rule will require that all federal employees, federal contractors and certain healthcare workers be fully vaccinated against the virus, subject to medical or religious exemptions.

Abbott’s Order comes in direct conflict with the President’s Executive Order, which puts many businesses in a no-win situation with no guidance on how to proceed without breaking either state or federal law. If they comply with Governor Abbott’s ban, they will be in violation of federal law, with penalties expected to be in the range of $14,000 per violation and potentially higher. If they comply with President Biden’s vaccine mandates, they will be in violation of Texas state law, with penalties up to $1,000 per violation.

Exemptions to the Texas Law

Abbott’s Order also provides several exemptions, including two not contemplated by federal law or clarified in any way. Under Abbott’s Order, people may opt out of a vaccine requirement for religious reasons, medical reasons, proof of having COVID-19 in the past, or “personal conscience” reasons. The first two exemptions are supported by federal law and have been clarified through years of litigating such exemptions under the Americans with Disabilities Act or Title VII of the Civil Rights Act. The latter two exemptions, however, will undoubtedly stir up controversy and confusion due to the lack of definitive guidance on the applicable qualifications.

First, medical exemptions typically involve pre-existing conditions, doctor recommendations, or allergic reactions to vaccine ingredients, all of which are provable and fairly easily defined. Proof of a previous case of COVID, however, is not widely-accepted as a basis for a medical exemption, and there is no guidance as to the acceptable duration of time since the COVID infection occurred, whether a COVID-positive test is required as proof, or if a person’s verbal report (like with religious exemptions) will suffice.

Second, there is no guidance whatsoever as to what constitutes a valid exemption based on an individual’s “personal conscience.” Without definition, this exemption is effectively a green light for anyone and everyone in the state to negate a vaccine request or requirement by an employer, school, or business (including concert venues, ball parks, and stadiums).

OSHA is currently working on formal guidance for employers regarding the vaccine mandate promulgated by the Biden administration. OSHA’s guidance is expected any day, and would preempt any directives outlined in the Abbott Order for employers with 100 or more employees, healthcare employers, and federal contractors in Texas. Smaller businesses outside of healthcare and federal contracting, however, would still be subject to the Abbott Order. The conflict between state and federal law and the lack of guidance from Governor Abbott about the interpretation of his recent Order are already the subject of various legal challenges and requests for clarification, so there is definitely more to come.

Employer Takeaways

  • All Texas employers are advised to wait for further guidance from the Governor’s office, the Texas legislature, OSHA, or a court ruling before changing or altering any policies in place.
  • Texas employers with 100 or more employees, health care employers, and federal contractors will likely need to comply with federal law regarding vaccines in the workplace, and may be able to avoid application of the Abbott Order.
  • Small Texas employers outside of healthcare and federal contracting will likely need to comply with the Abbott Order.
  • In anticipation of compliance with state or federal law, all Texas employers should document the vaccination status volunteered by an employee, and the basis for exemption asserted by an employee, in the employee’s confidential file.
  • All Texas employers should ensure that they are honoring the medical exemption under the ADA and religious exemption under Title VII asserted by employees.
  • Monitor developments as more guidance emerges at the state and federal level, and continue documenting the reasonable steps taken by employers in an effort to comply with federal and/or state law.

As the country continues to grapple with the confusing guidance from various governmental sources, employers are well-served by taking a cautious approach, documenting reasonable efforts to work with individual employee requests, documenting good faith attempts at compliance to avoid any future punitive measures, and consulting with legal counsel before taking any adverse employment action.

The attorneys at WSHB are available to provide guidance through these murky waters on the employment law front as we all emerge from the pandemic. Please do not hesitate to reach out to the author of this article or any member of our employment law practice team for help.

___

This article was co-authored by Madison O. Arcemont, a law clerk in WSHB’s Dallas office. 

PRINT

Privacy Policy      |      Site Map

© 2021 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required