04 Nov 2021

Workplace Vaccine Mandates: Federal & State Conflicts


When the White House announced workplace vaccine mandates for federal contractors and employees, several states initiated their own rules to allow for more exemptions. For many employees, businesses, and HR professionals, this only caused more confusion. 

So, how should a business and its employees approach vaccine policies when there are conflicting directives? (See Clayton’s Explanation on Fox 26 Houston) Generally, it is on employers to analyze the nature of the business. Moreover, they must analyze whether federal rules impact their operations and weigh this against any tolerance for risk. 

This is because these issues tend to evolve over time. In the meantime, it’s a good idea for any employer to encourage vaccination within the workplace. Additionally, they should follow all safety recommendations in accordance with guidance from the CDC. 

Conflicting Directives at the State & Federal Levels

Per the Path Out of the Pandemic plan, there are workplace vaccine mandates for federal employees with differing deadlines. Federal employees must have a full vaccination by November 22, and federal contractors must meet this requirement by December 8. 

Moreover, the Occupational Safety and Health Administration (OSHA) has a pending emergency temporary standard (ETS). The expectation is that this requires private-sector employers with 100 employees or more to require vaccination or regular COVID-19 testing. 

Under these federal rules, employers must make reasonable accommodations with certain religious or medical considerations. 

The Texas Executive Order

Recently, Governor Greg Abbott issued a broad executive order. Essentially, the order bans workplace vaccine mandates across the state. 

Per the order, “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.”

How Other States Address Workplace Vaccine Mandates

Similar actions occurred in other states as well. Last month, Arkansas legislators sent a series of bills to the governor’s desk. Their goal is to provide workers with more options when they choose to decline the vaccine. 

  • Submit to weekly testing for COVID-19
  • Provide biannual proof of natural antibodies from prior infection

However, the governor declined to make a decision on the bills, meaning they become law in 90 days unless a judge blocks them. 

In Ohio, lawmakers are weighing their options with proposals that require employers to accept negative tests as part of workplace vaccine mandates. Moreover, Montana prohibits employment discrimination based on vaccines and vaccination status. 

On the other end of the spectrum, New York recently met its deadline for vaccination mandates for state employees, including healthcare workers. The order for healthcare workers had no exception for sincere religious objections. However, a court temporarily blocked that aspect of the order. 

In a statement, the court said that eliminating religious exemption is a direct conflict with federal employee protections. Everyone has a right to seek religious accommodation. 

Seemingly, these controversies are merely the beginning. States continue to weigh proposals, make laws, and issues orders. Moreover, many face lawsuits challenging the validity. 

Between the federal requirements and pending OSHA ETS, the most likely result is a messy, shifting patchwork of workplace vaccine mandates. This makes the situation more complex for both employers and employees. 

Which Rules Apply to You?

When employers face conflicting laws at the federal and state level, federal rules tend to pre-empt state laws. However, these new federal requirements do not apply to everyone. This means it’s on employers to review the impact on their business. 

If a business has less than 100 employees, the OSHA ETS won’t apply. Moreover, the rule for federal contractors only applies to employers with specific contracts. Without coverage by either federal rule, it is on employers in Texas to follow the executive order. 

However, many employers in the healthcare sector may require vaccination with an anticipated mandate from the Centers for Medicare & Medicaid Services. If this happens, it also potentially pre-empts Abbott’s order. 

If companies with workers in Texas require vaccination, a low-risk alteration to deal with the order is to modify policies. If they provide accommodations for employees with “personal conscience” or “prior recovery,” they can avoid potential conflict. 

Employers covered by the pending OSHA ETS have the option to offer weekly testing in lieu of workplace vaccine mandates. As new federal rules emerge and legal challenges play out, it’s best to remain flexible. 

Additionally, it’s possible that the OSHA ETS will include specific language to supersede local or state laws that are less stringent. However, it’s important to remember that it does not have jurisdiction over every single private business in the nation. 

While OSHA covers more than half the states in the US, it allows states to develop their own plans for safety and health in the workplace. However, these plans must be “at least as effective” as their program. 

Tips for Employers & Employees

When it comes to workplace vaccine mandates in Texas, employers have to adjust policies carefully. It is crucial to comply with applicable rules released at the federal level. Additionally, it’s a good idea for anyone unsure of the application of these policies to consult with an employment lawyer

Any choice a business makes about a policy needs documentation and support. Conflicting communications, training, etc make the waters murky. Moreover, it may be a good idea to track the vaccination status of employees, regardless of a mandate. This has the potential to expedite compliance as the federal rules evolve. 

Fox 26 Houston interviews Clayton Craighead – Houston’s #1 Employment Lawyer: https://www.fox26houston.com/video/92760

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