What will happen when Texas’ Covid-19 vaccine ban conflicts with federal vaccine requirement


Texas Governor Greg Abbott’s new bans by decree any entity in Texas to enforce a Covid-19 vaccine mandate – a rule that directly conflicts with rules proposed by President Joe Biden requiring Covid vaccines for federal workers and for large employers.

The concurrent rules link for many companies who depend on federal workers, including the major airlines Southwest and American Airlines. So what will happen when the state rule and the federal rule collide with each other?

In general, federal law prevails over state law because of the supremacy clause of the U.S. Constitution, which says federal law takes precedence over state law, legal experts told CNN.

“Under the supremacy clause of the Constitution, I don’t think there is any doubt that these federal contractors will have to honor government-ordered mandates,” CNN chief legal analyst Jeffrey said Tuesday. Toobin.

However, there are many unanswered issues that make it premature to predict what will happen next.

In this case, Abbott’s ordinance states that “no entity in Texas” may impose vaccination on anyone in the state who opposes it “for any reason of personal conscience, based on religious belief, or for medical reasons, including a previous recovery from Covid-19, “according to a statement from the governor’s office.

The definition of “personal conscience” in Texas law is unclear, making it difficult to say how the courts will interpret if it conflicts with federal law. In addition, the Biden administration’s federal rules on contractors have not yet come into effect, and its rules for large employers have not been finalized, and these are likely to face legal challenges as well. .

“In public health areas, more often than not, federal law would prevail over the laws of conflicting states,” said Debra Friedman, employment counsel at the Cozen O’Connor law firm. “What’s difficult here is that the federal law has not been fully fleshed out, nor has this executive order, and the devil is in the details.”

The exact timing and language are unclear

Last month, Biden said he headed the Labor Department to require companies with more than 100 employees to ensure that their workers are either vaccinated or tested once a week. Companies could face thousands of dollars in fines per employee if they don’t comply.

However, the exact wording of this rule has not yet been finalized. The Occupational Safety and Health Administration, which falls under the Department of Labor, submitted the text of the rule to the Bureau of Management and Budget Tuesday.

The Occupational Safety and Health Administration has worked diligently to develop a temporary emergency standard that covers employers with 100 or more employees to ensure their workers are fully immunized or undergo weekly testing for protect employees from the spread of coronavirus in the workplace, ”said the spokesperson for the Ministry of Labor.

Toobin said the exact wording of that rule mattered to whether the federal rule would stand legally.

“I think it will be important to see how this is worded and if there are any exceptions,” he said on Tuesday. “I think that will probably be maintained as well, but it’s difficult to assess since this regulation has not yet been put in place by the Biden administration.”

The timing of these federal rules could also complicate the state-federal conflict. Abbott’s decree went into effect immediately on Monday, the command indicates. However, the federal contractor rule of the Biden administration does not enter into effective until December and the rule of large employers has no date yet.

Labor Secretary Martin Walsh told Axios in an interview broadcast on HBO on Sunday that the rules are still ongoing and will be available “hopefully in the next few weeks.”

Until that happens, employers will have a hard time balancing state and federal rules.

“It is difficult for employers to thread the needle in terms of compliance with applicable laws,” Friedman said.

Large employers say they will follow federal rules

The federal rule mandating Covid-19 vaccines will apply to employees in Texas who work for airlines, airports, the U.S. Post Office, the Social Security Administration and federal courthouses, according to Jeffrey Abramson, professor of law and of government at the University of Texas. in Austin.

“Governor Abbott should know better, and probably knows, that he cannot legally enforce his ban on all vaccination warrants on federal entities operating in Texas,” Abramson said in an email.

Indeed, several large employers who rely on federal contractors have said they plan to comply with the federal rule requiring vaccination against Covid-19.

Southwest Airlines, based in Texas, noted the supremacy clause in his statement, saying it would be in line with the vaccine mandate.

“We are aware of Governor Abbott’s recent order,” Southwest said. “Federal action supersedes any state mandate or law, and we should abide by the president’s order to remain compliant as a federal contractor. We will continue to monitor all orders closely. “

The Greater Houston Partnership, a city business group of 900 businesses and organizations, said it will continue to support the right of businesses to demand Covid-19 vaccines.

“Businesses have a duty to maintain a safe working environment, and many felt that vaccine requirements were an important step in getting back to business safely and necessary for growing Houston’s economy,” said the President and CEO Bob Harvey in a statement.

“The Governor’s Executive Order does not support the ability and duty of Texas businesses to create a safe workplace. While the courts will likely decide on the validity of this executive order, we encourage all employers to continue to promote the importance vaccination among their employees, ”he said. added.

In June, the Houston Methodist Hospital System instituted a vaccination mandate and parted with more than 150 employees for non-compliance. Dr Marc Boom, chairman and chief executive of the system, said in a statement Tuesday that they were “deeply disappointed” with Abbott’s order.

“We are grateful that we mandated the vaccine early so that the prescription did not have an immediate impact on us. But we are concerned that other hospitals in Texas may not be able to continue their mandate now with it. Health care workers all have an obligation to care for their patients safely and this order makes that promise more difficult, ”Boom said.

“We are now looking at the order and its possible implications,” he added.

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