Texas Gov. Greg Abbott hedshot

Lone Star State Gov. Greg Abbott (R) issued an executive order Monday evening prohibiting “any entity in Texas” from mandating COVID-19 vaccinations for an employee or 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.”

The governor also sent a message to the chief clerk of the state House and secretary of the state Senate adding this issue as an item to the agenda for the third special session. If the legislation passes, the governor would rescind the executive order.

“The COVID-19 vaccine is safe, effective, and our best defense against the virus, but should remain voluntary and never forced,” the governor said.

“Gov. Abbott’s order expands exceptions to employer vaccine mandates. Under federal law, employers already have to consider exemptions for people who decline vaccination for medical or religious reasons. Gov. Abbott’s order adds an exemption based on “personal conscience” and also expands the medical exemption to include people who have recovered from COVID-19.  The scope of the expanded exemptions is unclear,” said Elizabeth Pendo, JD, Joseph J. Simeone Professor of Law and a member of the Center for Health Law Studies at Saint Louis University School of Law.

“Under the Texas order, private employers, such as skilled nursing facilities and senior living communities, can still require vaccination as long as they consider the expanded exemptions in the order,” she said.

However, private businesses who are federal contractors are in a difficult position because the expanded exemptions of the Texas order may conflict with the requirements of the President Biden’s federal vaccine order.

“Biden’s order calls for OSHA to develop a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require regular testing.  CMS is also taking action to require vaccination in healthcare settings that receive Medicare or Medicaid reimbursement. If these rules include only the medical and religious exemptions already recognized by federal law, then the federal rule will conflict with the Texas order.  In that case, the Texas order can be challenged on the basis that it is superseded by federal law,” Pendo said. 

Abbot characterized the coming national requirement as “bullying” of private entities. White House Press Secretary Jen Psaki, however, on Tuesday said that Abbott’s executive order is “putting politics ahead of public health.”