Update: State & Federal Vaccine Mandate Issues

Update: State & Federal Vaccine Mandate Issues

Summary

The U.S. Supreme Court’s recent decision to block Biden’s vaccine-or-test mandate for large employers means that companies cannot force their employees to choose between taking the jab and losing their jobs. In addition, Texas Governor Abbott recently issued an executive order prohibiting any company or organization from imposing a vaccine requirement on their employees in the state. Texas Values has always opposed vaccine mandates and supported an individual’s right to make their own medical decisions, even filing our own legal amicus brief with the U.S. Supreme Court in NFIB v. DOL, the case which blocked the federal government mandate.

While Governor Abbott’s executive order against vaccine mandates offers some protection for employees, executive orders can be overturned and Texas law is not clear on this issue.  This issue needs clear, specific, and permanent policy in Texas statute that does not have an expiration date; not only for private company employees, but medical personnel, students, local governments, and those seeking exemptions for reasons of conscience. Another special session of the Texas Legislature could be useful to pass clarifying law on this issue, and Texas Values has made this request and consistently supported a special session on banning vaccine mandates.

Want to know more? Read below for further background information on state and federal actions relating to vaccines:

Current Status of Texas Vaccine Issues

What are the primary rules and laws governing vaccine mandates in Texas?

In Texas, Executive Order GA-40 by Governor Greg Abbott is an umbrella order that encompasses previously-issued executive orders which are still in effect and goes further to prohibit any governmental or non-governmental entity from imposing a vaccine mandate in the state. This order includes employees and consumers who object to vaccination based on reasons of personal conscience, religious belief, or medical necessity.

Earlier executive orders (GA-38, and GA-39) had taken a piecemeal approach such as prohibiting vaccine mandates for vaccines under emergency-use authorizations. The Texas Attorney General’s office is currently involved in active litigation with a number of school districts and other entities who are out of compliance. Finally, some recent Texas laws discuss “vaccine passports” or showing proof of Covid-19 vaccination.

• GA-38 issued July 29, 2021, said that state or local government agencies could not mandate a Covid-19 vaccine given under an “emergency use authorization” from the U.S. Food and Drug Administration.
• GA-39 issued August 25, 2021, prohibited governmental entities from requiring any Covid-19 vaccine.
• Section 161.0085 Health & Safety Code – prohibits state and local governments from issuing documentation of a person’s Covid-19 vaccination status. (SB 968, 87^th Regular session)
• Section 161.0085 also says that businesses cannot require proof of vaccination from their customers. Businesses that receive state funds or who are licensed by the state are at risk of losing their contracts or licensure if they require proof of vaccination. (SB 968, 87^th Regular session)

How are these rules enforced?

GA-40 does not say how violations should be reported.  It also does not say who is responsible for enforcing the order.  However, the Texas Attorney General’s office has issued out-of-compliance letters, in addition to bringing suit against certain entities. The Texas Workforce Commission issued a letter to Texas employers that states that employees can report violations of GA-40 to TWC over the phone or by email.

The Texas Attorney General’s office is currently part of several lawsuits against the federal government including (1) the OSHA ETS case, (2) the Federal Contract case, and (3) the CMS Mandate case.

Vaccine Legislation from the 87^th Legislature, Third Called Session

Texas legislators proposed several pieces of legislation to protect against intrusive vaccine mandates during the state’s third special session called by Governor Abbott.  Unfortunately, none of these bills ultimately became law.

• SB 14 – Prohibits vaccine mandates by state government.
• SB 13 – Prohibits vaccine mandates except for state employees; allows state employees to “opt out” for reasons of conscience, including religious beliefs.
• HB 14– requires any contract the state or a political subdivision makes with a private company to include a provision prohibiting the company from requiring employees to be vaccinated.
• HB 33 – prohibits companies and hospitals from requiring their employees to be vaccinated. Facilities who violate the bill commit a Class B misdemeanor and will lose their license for five years.
• HB 18 – prohibits employers from requiring employees to be vaccinated, but specifically uses an individual’s bodily autonomy as justification.
• HB 37 – allows for employer vaccine mandates, but — like Hall’s government-specific bill — allows employees to opt out for “reasons of conscience.” Individuals must complete a vaccination exemption affidavit explaining their reason for exempting themselves and return it to their employer.
• HB 86 – to regulate school-based vaccine mandates. Under this bill, public or private schools that require students to be vaccinated are subject to a civil penalty of up to $5,000. Schools in violation will also lose their eligibility to receive grant money from the state government or enter into a contract payable with state funds.

Current Status of Federal Government Vaccine Issues

The federal government’s implementation of vaccine mandates is best described in timeline format:

September 2021: The Biden Administration Issues an Executive order Requiring Federal Contractors to be Vaccinated

• On September 9, 2021 President Biden issued an Executive order that requires all contracts and contract like instruments to include a clause that the contractor or subcontractor, for the duration of the contract comply that all guidance in the Safer Federal Workforce Task Force Guidance.
• The Executive order was considered effective immediately upon issuance.

November 4, 2021: The Biden Administration Issues Vaccine Requirements through OSHA, Medicaid, and Medicare

• The Occupational Safety and Health Administration (OSHA) announced a mandate requiring employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis.
• Employers would have to provide paid-time leave for employees to get vaccinated.
• Employers would have to force all unvaccinated workers to wear a mask in the workplace.
• The Centers for Medicare and Medicaid Services (CMS) require that health care workers at facilities participating in Medicare and Medicaid are fully vaccinated.
• OSHA and CMS claim their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.
• The deadline to have all employees comply with the new guidance was January 4.

November 10, 2021: The Biden Administration Updates the Guidance for Federal Contractors and Subcontractors

• The Biden administration says in a November updated order that federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:
  • COVID-19 vaccination of covered contract employees, except in limited circumstances where an employee is legally entitled to an accommodation.
  • Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces and
  • Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

January 3, 2022: A Federal District Court Granted a Preliminary Injunction Against the Biden Administration and Department of Defense Vaccine Mandate

• The lawsuit was filed on behalf of 35 Navy Seals in defense of their religious objections to the vaccine.
• The judge’s (Federal Judge Reed O’Connor, ND of Texas) preliminary injunction means that the U.S. Navy can take no adverse action against the Navy Seals for not obtaining the vaccine and the Navy must respect religious beliefs on vaccines.
• The Biden administration is expected to appeal the decision.

January 7, 2022:  SCOTUS Hears Lawsuits Against Biden Administration OSHA and Medicare/Medicaid Mandates

• Oral arguments focused on religious liberty exemption for workers and agency powers in making rules.

January 13, 2022: The U.S. Supreme Court Blocked the Biden Administration from Enforcing its Sweeping National Employer Vaccine Mandate for Large Companies.

• SCOTUS: A statute on workplace hazards does not justify a mandate that would have required more than 80 million workers to be vaccinated against the coronavirus or be tested weekly.
• SCOTUS: Congress had not authorized the agency to act, and described OSHA’s response as a “blunt instrument.”
• But SCOTUS allowed vaccine mandate to stand for medical facilities that take Medicare or Medicaid payments.

January 25, 2022: OSHA Stops Requiring Large Companies To Have Their Employees Get Vaccinated or Test for COVID-19.

• The emergency temporary standard will be withdrawn as of Jan. 26^th, according to court documents.