On October 11, 2021, Texas Governor Greg Abbott issued an executive order expanding upon a recently passed law that generally prohibited Texas businesses from requiring proof of vaccination from customers. The new executive order applies to both consumers and employees and states, in part: “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.” The executive order does not define “personal conscience” or explain what “prior recovery from COVID-19” means in the context of objecting to a COVID-19 vaccine. The order also sets up a maximum fine of $1,000 for failure to comply with the order (although the order is unclear regarding how the fine would be calculated).

Governor Abbott also sent a message to the chief clerk of the Texas House and secretary of the Texas Senate adding the subject of the executive order to the third legislative special session agenda. There are currently several pieces of proposed Texas legislation regarding vaccinations that, if passed, would affect employers’ ability to mandate vaccination in the workplace. The third legislative special session commenced on September 20, 2021 and is limited to a maximum of thirty days.

The interaction between this Texas executive order and President Biden’s COVID-19 Action Plan will likely be the source of much debate and legal analysis. Employers with Texas employees should reach out to experienced counsel to discuss options for COVID-19 vaccination policies.