SAN ANTONIO – Texas Gov. Greg Abbott’s latest executive order is clear -- no entity, including private businesses -- can require their employees or customers to be vaccinated against COVID-19. But the application of the order is much less clear.
Businesses across the state, several of which have already mandated employees take the COVID-19 vaccine, are reviewing their policies and consulting with their legal teams as they decide how to proceed.
The latest statewide mandate raises many questions that will likely have to be settled by the courts, said University of Texas-San Antonio Political Science Prof. Jon Taylor.
Abbott’s order contradicts a federal directive by President Joe Biden that requires businesses with more than 100 employees to require vaccinations or weekly testing for employees who do not comply.
“This would be something that eventually would wind up in the US Supreme Court, if it got that far,” Taylor said.
Many large private businesses, including Texas-based Southwest Airlines and American Airlines, have already said they will proceed with their vaccine mandates, citing the federal order. Federal orders would take precedence over a conflicting statewide order under the US Constitution, Taylor said.
But smaller businesses may need to abide by Abbott’s order.
“The larger employers will most likely be governed by Biden’s mandate, and the smaller employers will be governed by Abbott’s plan,” said Edward Allred, a litigation attorney in San Antonio.
The order’s ability to be enforced will also be a question. Abbott’s order laid out that people who violated the order could be fined, but not jailed.
However, it is traditionally up to each county’s district attorney to pursue those claims. And while Bexar County District Attorney Joe Gonzales has not yet said whether he will enforce those orders, he has previously pledged not to enforce previous orders signed by Abbott.
“They could basically choose not to pursue a case,” Taylor said.
Another issue that arises stems from Texas employment laws, Taylor said.
“Texas is an ‘at-will’ state, which means that an employer could probably still say, ‘Yeah, we don’t have to require you to have a vaccine, but we also don’t have to employ you as well,’” Taylor said.
That conflict would also likely be litigated through the courts.
For months, Abbott had been touting that Texas does not tell businesses what to do. Though his latest order is a departure from that, the governor is attempting to shore up support from conservatives ahead of a bruising primary with Don Huffines and Allen West, Taylor said. Both credited themselves for pushing Abbott to issue that order.
“I think there is a worry for him,” Taylor said. “If you look at opinion polling from Texas in the last few months, the governor is basically below water, which means he’s below 50% approval ratings. Even among Republicans, he’s not that strong.”
The executive order will remain in effect until the Texas Legislature codifies it into law, Abbott said. The governor added the issue to the current special session, but it remains to be seen whether state lawmakers will abide by Abbott’s request amid a contentious battle over redistricting.
“Is there enough time (in this special session)? That’s a good question,” Taylor said. The governor, I will say, has intimated that there might be a fourth special session. So if it doesn’t make it on this special session, you could see it in a fourth special session.”