On Oct. 11, Texas Gov. Greg Abbott issued an executive order limiting vaccine mandates, even for private employers. This flies in the face of President Joe Biden's September announcement that all large employers must require their employees to be vaccinated or show weekly negative test results.
This begs the question: How should Texas employers proceed?
Unfortunately, businesses across the U.S. have found themselves caught in a political tussle, and the mixed signals from federal, state and local authorities make next steps confusing, employment experts say. Some employers can take direction based on their workforce type.
"For employers that are currently bound by federal contractor vaccine program rules, federal law likely preempts the Texas law because it is inconsistent with those federal rules," according to Karen Vladeck, partner at Wittliff Cutter, PLLC. Those employers should follow guidance already issued.
Employers have been waiting — in some cases less patiently — for OSHA's emergency temporary standard for other large employers, which will implement the White House directive.
In the meantime, Texas employers that are not federal contractors ought to "provide a testing alternative for any employee who raises an objection to vaccines," at least until the new OSHA rules are available, Vladeck said.
Because the federal requirement appears to allow for an alternative of weekly testing for employees who do not wish to be vaccinated — and because Gov. Abbott's order does not explicitly disallow weekly testing — Texan employers may be able to avoid crossing either entity by taking an either/or approach.
But not all will be clear until OSHA releases its emergency temporary standard.
"We are in a bit of a holding pattern while we wait for the OSHA rules to come out," Vladeck said. "But we should be getting them in the next week or so."