Texas and Montana have banned companies from requiring workers to vaccinate, putting the states in potential conflict with the Biden administration’s impending regulations.
“There are a number of potential legal challenges to any of these orders,” said Kelly Edwards, Houston attorney for Littler Mendelson, who represents companies in employment matters, referring to both the federal mandate and the new Texas order.
Below is an overview of state mandates and how they could potentially conflict with federal mandates.
What are orders?
Texas Gov. Greg Abbotts
Executive order issued on October 11 states that “no entity in Texas may compel any person, including an employee or consumer, to receive a COVID-19 vaccine based on religious belief, or for medical reasons for any reason in personal discretion.” opposes such vaccination, including prior recovery from COVID-19.”
Failure to comply can result in a maximum fine of $1,000 per violation.
The governor issued the order using his emergency powers under state law. In doing so, Texas joins Montana as the state that has gone to the fore in limiting private employer-mandated vaccinations. Montana’s Ban, Joe was enacted into law earlier this year, made it illegal for the company to discriminate based on vaccination status.
What are the legal uncertainties?
In short, there is a lot of uncertainty, said employment lawyers in Texas who are trying to understand the situation. Even setting aside any conflicts with federal regulations, the Texas order leaves unanswered questions about who is covered and what reasons employees can give for refusing vaccination.
Steven Shardonofsky, head of labor and employment practice at Seyfarth Shaw in Houston, said it is uncertain whether the ban covers employees working remotely in Texas for out-of-state companies. He said it was also unclear whether companies based in Texas could be fined for not accommodating out-of-state workers who refused vaccinations.
The language also leaves it unclear whether an employee can oppose vaccination based on a strong personal belief or whether the personal objections should be religiously motivated, Mr Shardonofsky said. And it is uncertain whether employers can check the integrity of any personal or religious objections, he said.
Texas lawmakers have proposed legislation codifying the ban, which could add more clarity. The governor can also follow up on his direction with additional legal guidance to clear the confusion.
Montana’s law does not specify any penalties for violations. Companies with a vaccine mandate may be subject to discrimination complaints, prompting an administrative review by the state’s human rights commission that may require employers to take corrective action.
How are orders enforced?
For now, probably enforcement powers rest with local prosecutors. In Texas, the order does not give vaccine objectors the right to bring wrongful termination claims to those who lose their jobs. Lawmakers have proposed an amendment to the Texas discrimination law to give more legal remedies to vaccine refusers.
Do the orders conflict with the mandate of the Biden administration?
The White House last month directed the Occupational Safety and Health Administration, the federal agency that regulates workplaces, to come up with emergency rules directing employers with 100 or more employees to require that their employees be vaccinated. Or at least undergo weekly Covid-19 tests. Businesses that do not comply could face fines of up to $14,000 under the plan outlined by the president.
OSHA rules have not yet been issued and are not yet in force. But it is expected that they will conflict with the Texas and Montana ban in many cases. The regulations are expected to comply with standards set by federal workplace anti-discrimination laws and provide narrow accommodations to workers who refuse vaccines because of disabilities or because of a sincere religious belief.
Federal regulations are unlikely to exempt healthy workers previously infected with COVID-19 as the Texas order does.
“Most employers do not consider pre-Covid-19 recovery as something that qualifies an employee for disability accommodation,” Ms Edwards said.
How will the conflict be resolved?
Generally, under the Constitution, when policy-making authority overlaps, federal law trumps conflicting state actions. So federal vaccine mandates can pre-empt state directives standing in their way. The response is expected to face legal challenges to both the mandate and the sanctions, however, leaving the situation in more flux.
Montana’s law has already come under attack from lawsuits claiming it violates the state’s constitutional guarantee of a “clean and healthy environment.” the private sector.
write to [email protected] . on Jacob Gershman