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).
On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring certain entities to develop health and safety policies and to require masks indoors.
In relevant part to employers, all commercial entities in Dallas County “providing goods or services directly to the public must develop a health and safety policy.” The policy must require, at a minimum, universal indoor masking for all employees and visitors to the commercial entity’s business premises or other facilities. Additionally, the policy may include other mitigating measures to control and reduce the transmission of COVID-19, such as temperature checks or health screenings. The policy must be posted in a “conspicuous location” to provide notice to employees and visitors. Commercial entities are required to implement the policy within three (3) calendar days of the effective date of the order. Failure to do so may result in a $1,000 fine per violation.
According to a legal opinion posted online on July 26, 2021, the U.S. Department of Justice officially took the position that the Food, Drug, and Cosmetic Act—which authorizes an “emergency use authorization” for a vaccine—does not prohibit entities, including employers, from requiring a vaccine even if authorized for emergency use only. Read Full Update