Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.
Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] 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.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.
The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.