When it comes to companywide vaccine mandates, maybe it's OK to mess with Texas.
Five of the largest tech companies that have implemented vaccine mandates told Protocol they haven't changed policy in Texas or elsewhere in response to a new state executive order banning any "entity in Texas" from requiring the shot.
Mandates remain in place nationwide at Google, Facebook, Twitter and Lyft, according to those companies, all of which have a presence in Texas.
Even Houston-based HPE will go so far as to place its employees on unpaid leave if they don't show proof of vaccination or qualify for a medical or religious exemption, the company announced yesterday.
Rather than following the Texas order, HPE is making vaccination a condition of employment for U.S. workers in order to "comply with President Biden's executive order and remain in good standing as a federal contractor," the company said.
Gov. Abbott's vaccine 'anti-mandate'
Texas Gov. Greg Abbott issued the order last week as a challenge to the White House's September announcement of vaccine mandates impacting federal contractors and private employers with 100 employees or more.
A bill that would have expanded on the executive order failed in the Texas Legislature on Tuesday. Abbott's executive order remains in effect, but a number of large companies are evidently ignoring it.
Federal agencies are already requiring government contractors to have employees get vaccinated, and other large private employers are gearing up to require vaccines or regular testing under a forthcoming rule from the Department of Labor's Occupational Safety and Health Administration.
Having a state challenge federal requirements may seem to complicate things for employers, but it's hard to make a case for Texas's order when federal law trumps state law under the Supremacy Clause of the Constitution.
"It's kind of a 'devil versus the deep blue sea' issue for a lot of employers, especially government contractors who were already subject to mandates," said Aaron Goldstein, a labor and employment partner at the law firm Dorsey & Whitney. "It's hard to see how an executive order like this ends up being more than a stern suggestion to employers not to force their employees to be vaccinated."
Goldstein said he was surprised to see that Abbott had issued the order under the Texas Disaster Act of 1975, whose stated purpose is to protect people from natural or manmade disasters, including epidemics. Banning vaccine mandates seems to be "the opposite of what the Texas Disaster Act was designed to accomplish," Goldstein said.
Texas isn't the only state with an anti-mandate
Montana's Legislature passed its own law earlier this year banning employers from requiring vaccines, calling vaccine mandates "discrimination."
Other states could take action against employer vaccine mandates, but even if they do, they'll be irrelevant if the forthcoming emergency temporary standard from OSHA is upheld.
"The states can't pass laws that contradict valid federal laws," Goldstein said. "The question is going to be: Is the OSHA mandate valid as an emergency rule, or will it get struck down?"
A bigger issue: Exemptions
In the meantime, the biggest question for many employers remains how — or whether — to accommodate employees who request exemptions for religious reasons.
"There's been sort of a mass submission of requests for religious accommodations," Goldstein said. "Now you've got all of these form letters that people can print off the Internet, and a lot of folks believe this is their get-out-of-jail-free card to avoid vaccine mandates."
Companies should feel free to push back on exemptions that cite factual inaccuracies about the vaccine — like a claim that there's pork gelatin in the shot, for example — and to question inconsistencies in employees' past behavior. If an employee's flu shot last year was also tested on stem cells, it's tough for them to argue they don't believe in ingesting anything that was tested on stem cells, Goldstein said.
Still, employers should tread lightly, because the U.S. Equal Employment Opportunity Commission offers a wide berth to religious accommodations, Goldstein said.
"Just because someone ate a slice of bacon two years ago doesn't mean you don't have to provide them a kosher meal at the company picnic if they request one," Goldstein said.