Employer Mandate Wars!

It's now mid-October and Texas employers are caught in the middle. On the one hand, we have the federal government telling us that an OSHA mandated vaccine requirement is coming for employers with more than 100 employees. Yet, we have no written regulations or guidance.

On the other hand, we have the Governor of Texas entering the field and declaring via Executive Order No. GA-40 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. I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.

The Governor has also indicated that he will ask the legislature to codify this prohibition during its current special session (ending October 19th).

Sigh.

Regardless of your position on the usefulness of employer vaccine mandates, employers are caught in the middle of this federal vs. state clash of mandates. What are they to do?

It seems both mandates are on dubious legal grounds. The federal mandate, assuming it is ever implemented, is likely to be challenged on constitutional grounds. While states hold more power to make decisions about public health issues, I would also argue that the Governor's EO has weak support from Texas law as well. Clearly, the legislature could enact a mandate either way, but it is hard to see how the Governor can do this unilaterally. We will see if the legislature acts.

Employers should continue deciding on their own what is best for their workforces as they continue to muddle their way through dealing with COVID-19.

To paraphrase Wordsworth:

The government is too much with us; late and soon,

Getting and spending, growing every day in powers;--

Little we see in its grasp that is ours;

We have given our hearts away, a sordid boon!