The Republican governor signed an executive order on Monday banning
private employers and other entities from imposing COVID-19 vaccine
mandates, which he said threatened an economic recovery by
disrupting the workforce.Some large employers are betting that
federal law and President Joe Biden's vaccine mandates will trump
Abbott's executive order.
Southwest Airlines Co and American Airlines, both based in Texas,
said on Tuesday they would move ahead with plans to meet a Dec. 8
deadline for federal contractors to have their employees vaccinated.
"Companies recognize they have to comply with one or the other but
not both, and the Texas order is more likely to be struck down than
the federal order," said Steve Cave, a King & Spalding attorney who
specializes in government contracts.
The supremacy clause of the U.S. Constitution prohibits states from
interfering with valid federal laws.
![](http://archives.lincolndailynews.com/2021/Oct/13/images/ads/current/graue_lda_PPP_2021.png)
Abbott's order states that "no entity in Texas" can compel proof of
vaccination by any individual, including employees or customers.
Failure to comply could result in a fine of $1,000, although Abbott
did not say how the order would be enforced.
Biden's administration announced on Sept. 9 a plan that will require
about 100 million American workers to get vaccinated or submit to
weekly testing. Many of the plans have yet to be detailed and do not
yet have the force of law.
Biden, a Democrat, issued the mandate as his administration
struggled to control the pandemic, which has killed more than
700,000 Americans. Critics of mandates view them as unconstitutional
and authoritarian, but proponents see them as necessary to pull the
country out of the nearly two-year pandemic and return to normalcy.
Businesses could choose to test Abbott's order by imposing mandates
and then, if fined, challenging the fine in court.
Companies would likely argue they were complying with Biden's
mandate, and legal precedents support federal law taking precedence
over state law when they conflict, experts aid.
"This is going to turn into a fight about who has supremacy over the
other and there's a game of chicken between Governor Abbott and the
Biden administration," Cave said.
'HAVING TO THREAD THE NEEDLE'
Florida offers an example of how it might play out.
![](http://archives.lincolndailynews.com/2021/Oct/13/images/ads/current/safety-tip-daily-5.png)
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![](http://archives.lincolndailynews.com/2021/Oct/13/images/ads/current/farmersbank_lda_PPP_2019.png) Norwegian Cruise Line Holdings
Ltd in August won a court battle over a Florida
law forbidding it from requiring customers to
show proof of vaccination, which the cruise line
said it had to do to comply with federal health
regulations. The judge called the company's
argument "compelling." Employers
could face hurdles, however, in the Texas case.
The biggest part of Biden's vaccination plan relies on emergency
workplace safety rules that will soon be issued by the Occupational
Safety and Health Administration (OSHA).
Once those rules are written, 24 state attorneys general have
pledged to fight them.
Some legal experts suggested the OSHA rule could be blocked if
challengers can show the government cannot prove there is a national
"grave danger" as required by law.
If OSHA's rule is tied up in court or determined to be invalid, it
could make it harder to claim federal law should pre-empt Abbott's
order.
Given the uncertainty, businesses could try to comply with both
orders.
Kevin Troutman, an attorney in the Houston office of Fisher
Phillips, which represents employers, said businesses could allow
employees to opt out of vaccines if they submit to weekly testing,
which the Biden administration has said could be an alternative to
vaccination.
"It could make the option of testing something more employers want
to consider and implement more widely," he said. "It requires more
planning and attention and it creates more headaches."
Brian Dean Abramson, a specialist and author on vaccine law,
questioned if Texas would actually enforce the mandate ban by going
after employers. But he said the threat was probably enough for most
businesses to take action.
![](http://archives.lincolndailynews.com/2021/Oct/13/images/ads/current/collins_lda_PPP_2021.png) "The employer will be in a position of having to thread the needle
of establishing a vaccine policy that doesn’t run afoul of what
Abbott requires and run afoul of what the Biden administration is
requiring," he said. "But ultimately federal law will be supreme."
(Reporting by Tom Hals in Wilmington, Delaware; Additional reporting
by Rajesh Kumar Singh in Chicago; Editing by Noeleen Walder and
Peter Cooney)
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