On October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (EO-40), which purports to prohibit all vaccine mandates, including for private businesses, that do not permit certain exemptions. Gov. Abbott’s previous Executive Order (EO-38) prohibited vaccine mandates for governmental entities, state agencies, and political subdivisions, but left the option of vaccine mandates open to private businesses. At a high level, takeaways from EO-40 include: 

• Private employers should comply with EO-40 in Texas while waiting for OSHA to issue the Emergency Temporary Standard
• Employers subject to federal contractor guidelines due to contract amendments and newly signed contracts should follow federal regulations that supersede state and local law

---

EO-40 states that no entity can compel an individual to receive the COVID-19 vaccine who objects for the following reasons:

• For reasons of personal conscience, based on a religious belief
• For medical reasons, including prior recovery from COVID-19

With respect to the “medical reasons” objection, EO-40 includes prior recovery from COVID-19 as a covered medical reason, which goes beyond the medical exemptions covered by the Americans with Disabilities Act and against the guidance from the Centers for Disease Control (CDC).

With respect to the objection for reasons of personal conscience, EO-40 is not clear whether the reasons of personal conscience is modified by the phrase “based on a religious belief” or if “based on a religious belief” is meant to be a third reason. This distinction is important because if Abbott’s order is meant to only include medical and religious objections, this at least more closely tracks the two generally accepted exemptions under federal law.

EO-40 is enforceable by a fine of $1000, and not by jail time, and local officials cannot issue conflicting local orders. Further, Abbott asked the Texas Legislature to consider “legislation establishing that no 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.” Once such legislation is effective, Gov. Abbott will rescind EO-40.

The Texas Legislature has already proposed House Bill 155, which clarifies the personal conscience exception, and states as follows:

Notwithstanding any other law, any law, policy, or other measure requiring an individual in this state to be vaccinated against COVID-19 to enter or gain access to, receive a service from, or be employed by an establishment must allow the individual to claim an exemption from the vaccination requirement based on:

1. the individual's acquired immunity against COVID-19 through post-transmission recovery;
2. a medical condition; or
3. reasons of conscience, including a religious belief.

H.B. 155 makes clear that religious belief is only one example of a reason of conscience. In addition, the proposed bill allows employees to file suit against a non-compliant employer and seek injunctive relief, compensatory or punitive damages (subject to caps), and attorneys’ fees and costs. H.B. 155 would take effect on February 1, 2022 as drafted, and applies only to conduct occurring on or after the effective date.

Both EO-40 and H.B. 155 contradict President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which requires federal contractors and subcontractors with new contracts and renewals to mandate vaccination. The Guidance issued with respect to the mandate specifically states, “These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.” It is generally believed that EO 14042 will be held to preempt Gov. Abbott’s EO-40, and several federal contractors with Texas operations have stated publicly that they will continue to comply with the federal EO rather than the Texas EO-40.

Further, OSHA is expected to issue an Emergency Temporary Standard (ETS) within the next few weeks requiring employers with at least 100 employees to mandate the COVID-19 vaccine. While OSHA has submitted the ETS to the Office of Management and Budget for approval, there is nothing currently in place preempting EO-40 outside the federal contractor executive order and guidance. Texas employers can continue to prepare for the ETS and ask employees whether they are applying for an exemption, at the same time employers may want to expand the possible exemptions in Texas to track the legislation (if passed) or EO-40, and hold off on making permanent employment decisions based on vaccine status or exemptions in Texas until the ETS is issued and there is final legislation in Texas.

Unfortunately, even once the ETS is issued, EO-40 leaves small employers in a difficult position because the ETS will not apply to them. If a small employer has been considering a vaccine mandate, EO-40 makes it difficult to do so because the “reasons of personal conscience” exemption may be construed so broadly.

Of note, Texas is not the first state to prohibit employers from mandating vaccines. On May 7, 2021, Montana’s governor signed H.B. 702, which prohibits discrimination based on an individual’s vaccination status, including discrimination in employment (or compensation and other terms and conditions of employment). Currently two lawsuits are challenging H.B. 702, and it is expected that EO-40 or H.B. 155, if enacted as drafted, will be subject to similar litigation.

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.