Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.
Texas has been at odds with the federal government over COVID-19 vaccine mandates since President Joe Biden first rolled out requirements in the fall.
The Biden administration has made vaccine mandates a flagship pandemic response measure, requiring shots for health care workers, federal contractors and the majority of federal workers.
Meanwhile, Texas has been staunchly against mandates, with top Republican leaders arguing vaccine orders are government overreach. Gov. Greg Abbott issued an executive order in October banning any entity in the state from requiring the vaccine, and Texas Attorney General Ken Paxton has launched or joined a slew of lawsuits against federal vaccine orders.
The battle over vaccine mandates has now reached the U.S. Supreme Court, which last week reviewed federal vaccine policies for large businesses and health care workers. The court is expected to issue a ruling within the month.
The ongoing suits have left many Texas residents and employers unclear about who is required to get the vaccine. As litigation stands, employees of large businesses and Texas Army National Guard members are currently required to follow through with federal vaccine mandates. For health care workers and federal contractors, vaccine requirements from the Biden administration are currently frozen due to challenges in court.
Here is a breakdown of the lawsuits against the federal government’s vaccine mandates and who has to follow them in Texas.
A directive issued in November by the Department of Labor’s Occupational Safety and Health Administration requires businesses with 100 or more employees to order their staff to either get vaccinated against COVID-19 or get tested for the virus every week.
While Texas has sued to stop the mandate, the federal order is currently in effect and large businesses in the state must comply.
Paxton joined several other states in a lawsuit against the Biden administration over the vaccine-or-test policy. The 6th U.S. Circuit Court of Appeals ruled in November that the federal mandate could go into effect, reversing a decision from the U.S. Court of Appeals for the 5th Circuit.
The issue hasn’t been clear-cut for businesses. Under Abbott’s executive order, Texas businesses cannot impose a vaccine requirement for workers who qualify for religious, personal and medical exemptions. Federal rules preempt state and local laws, but Abbott has urged workers to report their employers if they issue a vaccine mandate in violation of the state executive order.
The federal vaccine mandate for large businesses is under review at the Supreme Court. In last week’s hearing, the court’s conservative majority seemed to lean toward blocking the requirement.
The Occupational Safety and Health Administration had set a Jan. 10 deadline for large businesses to implement mandatory vaccine-or-test policies, but said it would not issue citations until Feb. 9 if an employer “is exercising reasonable, good faith efforts” to be in compliance.
Mini Kapoor, a partner at law firm Haynes and Boone in Houston who specializes in labor litigation, recommends employers move toward complying with the federal vaccine mandate and start measures like tracking the vaccination status of their workers.
“A lot of clients are still in limbo figuring out what they want to do because we don’t know what the Supreme Court is going to say in the next few days,” Kapoor said. “Our recommendation generally is to be on the cautious side and at least take some steps towards complying with the (federal mandate) because as of (Jan. 10), OSHA has authority to start enforcement.”
Health care workers
The Centers for Medicare & Medicaid Services issued a vaccine mandate in November for health care workers at Medicare- and Medicaid-certified facilities. But health care workers in Texas are currently not subject to the federal order.
Judge Matthew J. Kacsmaryk in the Northern District of Texas granted a preliminary injunction and temporarily halted Biden’s vaccine mandate for health care workers.
“This is a win for liberty. The federal government does not have the ability to make health decisions for hard-working Americans,” Paxton said, after securing the injunction. “These unconstitutional mandates have no place in our country, and they are not welcomed here in Texas.”
The mandate for health care workers is also under review at the Supreme Court. The justices appeared to be more open to leaving the mandate for health care workers in place.
A September executive order from Biden required federal contractors and subcontractors to get vaccinated against COVID-19.
That vaccine mandate is currently not in effect. A federal judge in Georgia granted a nationwide injunction in December, prohibiting the federal government from enforcing the mandate. U.S. District Court Judge R. Stan Baker, appointed by President Donald Trump, wrote that Biden exceeded his authority and that the mandate imposed an “extreme economic burden” on contractors.
An appeals court in December declined a Justice Department request to reinstate the federal contractor mandate.
Several Texas-based employers, including Texas A&M University and the University of Texas at Austin, initially complied with the mandate for federal contractors and subcontractors but dropped it after it was blocked.
National Guard members
In the most recent fight over vaccine policies, Abbott sued the Biden administration last week for requiring Texas Army National Guard members to get the shot.
While guardsmen are still required under federal law to get the shot, Abbott is saying they won’t be punished if they do not follow the vaccine mandate.
“I have issued a straightforward order to every member of the Texas National Guard within my chain of command: Do not punish any guardsman for choosing not to receive a COVID-19 vaccine,” Abbott wrote in a letter to Maj. Gen. Tracy Norris, the Texas National Guard’s top military leader. “And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine.”
Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.