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Executive Order Showdown: The Vaccine Mandate

Executive Order Showdown: The Vaccine Mandate Background Image

When Texas governor Greg Abbott issued an executive order on October 11th stating that no entity in Texas could compel receipt of a COVID-19 vaccination by “any individual, including an employee or a consumer” who objects for any reason of “personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19,” he set the stage for a potential conflict with pre-existing executive orders issued by President Biden. Namely, President Biden’s September 9th executive order requiring the Safer Federal Workforce Task Force to issue COVID-19 workplace safety guidance for federal contractors, and requiring federal agencies entering into contracts to implement that guidance. Only weeks prior to Governor Abbott’s order, the federal Task Force issued the guidance ordered by President Biden, stating that covered contractor employees should be fully vaccinated no later than December 8, 2021. Since then, federal government contractors have received requests from executive departments and agencies not only to enter into, but also to modify, certain contracts to contain clauses requiring COVID-19 vaccinations.

While the Texas executive order and the federal Task Force guidance similarly contemplate objections (Texas) or exceptions (Task Force) to vaccination on the basis of disability or religious belief, there is conflict in that the federal guidance does not reference objections on the basis of “personal conscience.” For now, federal contractors in Texas are stuck with these potentially conflicting orders. Governor Abbott announced this week that there will not be a fourth special legislative session this year, making any further Texas legislation on this topic unlikely. The Texas governor’s order provides for a “maximum fine” of $1,000 (see Section 418.173 of the Texas Government Code), although some commentators are uncertain whether this could result in a maximum fine per “offender” or a fine that would apply per “offense.”

The federal Task Force’s guidance takes the position that principles of federalism prevail. In other words, that President Biden’s order and the terms of covered contracts entered into by federal contractors in Texas each prevail over Governor Abbott’s order to the extent there is a conflict.

At a press conference the day after Governor Abbott’s order was issued, the Pentagon Press Secretary was asked whether the federal government was reaching out to defense contractors in Texas. He said in response, “Yes, we do want our defense contractors to be vaccinated. But let me take your question and see if there’s something more specific that we’ve communicated and how that’s been communicated rather than just guess.” As of this writing, it’s not clear whether that “something more specific” has been communicated.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.