Are The American Airlines And Southwest Employee Vaccine Mandates Suddenly Illegal?

Are the American Airlines and Southwest Airlines employee vaccine mandates illegal? And is the United Airlines vaccine mandate illegal, at least for employees based in Houston? American and Southwest are based in Texas, while United has a hub there.

The Governor of Texas announced an Executive Order on Monday banning vaccine mandates in the state, including by private employers, who are instructed they must allow exemptions for anyone who objects on grounds of “personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

Does The Texas Disaster Act of 1975 actually give the governor the power to do this?

The Governor of Texas has banned school mask mandates under the same authority. Whether or not the law stretches to allow his banning disaster responses is currently subject to litigation. At face value it would seem to be a stretch, since the authority to direct the state’s Covid response wouldn’t seem to include limiting that response. However if you imagine that there’s a range of possible responses, and perhaps even a budget for them, the Governor is empowered to choose among possible responses – and to insist that others not make different selections that could undermine his disaster response priorities (such as they are).

How could a Texas governor’s Executive Order trump federal law? Well, it can’t. Except there is no employer vaccine mandate in federal law or regulation yet.

  • The President announced that companies with 100+ employees would have to require vaccination or regular Covid-19 testing. OSHA has not promulgated this emergncy regulation.

  • Airlines have announced they’re required to impose vaccine mandates (without a testing alternative) as federal contractors. But this isn’t so clear. The White House insisted that airlines take a lead in vaccination efforts and threatened to impose such a requirement on future government contracts, in other words to make it a condition for future government business.

    Biden’s administration notified carriers on Thursday it will seek a modification of [Civil Reserve Air Fleet] contracts to require vaccinations of airline employees, sources told Reuters. Other government agencies are also expected to seek amendments to contracts with airlines.

A federal vaccination requirement for employees of government contractors is probably legal. An OSHA emergency rule mandating vaccination or regular testing for employees of large companies is more questionable, but the Governor’s Executive Order is more questionable still. All of this simply adds uncertainty for companies in Texas – whose potentially illegal orders are we supposed to follow?

The Governor of Texas has called on the state legislature to pass a vaccine mandate ban. That suggests to me he believes his legal authority here is suspect at best. He is running for re-election next year, and facing a challenge in the primary. And as for the legislature, they’ve already met for longer than usual and would normally already be adjourned… until 2023.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. It’s more right wing messaging to the lunatic fringe in Texas. Abbott doesn’t care if it’s legal or not. If it’s not legal and gets struck down, it makes Abbott more of a victim—a right wing ‘win’ for him in his desperate attempts to win re-election.

  2. Agreed, this is just pandering to the cult. I’m still confused how vaccines became such a bad thing, especially since almost everyone has no problems with things like the measles vax. What’s even more laughable is if you served, you got a dozen shots in boot and no, they don’t let you opt out. This whole thing is just ridiculous

  3. for the sake of the US, lets hope vaccine mandates are illegal. What else is the B1den/CDC/OSHA going to force down our throats after this vaccine?

    And since when is “my body my choice” only limited to the left side of the political isle?

    Anyone criticizing any person who refuses vaccine mandates is a tyrant.

  4. This order probably won’t stand up to a legal challenge, particularly because it is an EO. The Biden mandate also likely wouldn’t make it through the courts, which is probably why it doesn’t actually exist. Had government stayed out of this fight, employers would have worked with their employees/unions to negotiate policies that worked in their context. Some would have mandated vaccines, others would have incentivized them, while some would have had no policy at all. In all cases there would have been far less conflict and division and in all likelihood vaccine numbers wouldn’t have been meaningfully different in the end. Government makes most every problem worse.

  5. @ John L and @ Alan — Yes, it is your choice. It is also your employer’s choice whether to fire you.

  6. @Gene So as an enthusiastic libertarian, would you agree that any woman should have the right to decide whether to get an abortion, and any private employer should have the right to fire her based on that decision?

  7. I agree with Doug that had the government stayed out of this we would be further ahead. You attract more flies with honey than vinegar. Forcing with the mandate took many who were on the fence and pushed them to say no to the vaccine. There were much better ways to accomplish this without the current conflict.

  8. @Gene – LOL. How’s that working for Southwest? And this is even before the firing, too. Only gonna get worse.

  9. It blows my mind that conservative politicians can’t see that getting the pandemic under control is what will cause businesses to thrive.

    Even in states with no unemployment bonuses, we aren’t seeing an increase in employment.

    I also don’t understand why governments can let businesses/academic institutions/other entities require other vaccines, but not the COVID vaccine.

    Seems like pure poppycock on Abbott’s part.

  10. @Gene
    It’s working out fine for me. I own my company.
    If my employees want to get vaccinated or not, it’s their choice. We have not had any confirmed Covid cases at my business. And I will never take orders from a brain-dead president.
    It’s my body, it’s my choice.

  11. Leaky vaccines (they don’t stop the virus, just slow it down) lead to faster spread and more variants. There are many respected scientists who have spoken out about this. Covid vaccines are not the solution that is needed.

  12. Alan (and other who think this way)

    It’s also my body, and you not getting vaccinated allows the virus to mutate, more death and illness. That’s called science and fact, not myth or politics. How many more people need to die for you and other like you to wake up?

    BTW, when you have to say good bye to your dying mother over a tablet (non-covid related, just old age), then tell me how you feel.

  13. Dear anti vaxxers, You have been coddled far too long. F your feelings. Have fun being unemployed. Ill save some cans for you to collect

  14. Nope ! because the Governor has no say over Airlines or Airports which are federally mandated …… NEXT !

  15. &sunviking “you not getting vaccinated allows the virus to mutate” This is not a compelling argument, since vaccinated people also can have high viral loads and spread the virus. The better argument is that high vaccination rates reduce the load on ICUs, benefiting all who need emergency care.

  16. @HT, you are exactly correct. Schools in Texas are still required to vaccinate children, except for covid? Political hypocrisy.
    Abbott is all for keep government out of the way of private businesses, except when it comes to covid, where he seems to be fine with telling me what I can or can’t do at my own business.
    I guess we should stop requiring quarantining for TB and anyone who has it should be able to object for “personal reasons.” Heck, let’s just allow all kinds of infectious diseases to run rampant. Well to the middle ages, we’ve come a long way baby.

  17. So all you “My body my Choice”…. You all must then be against the Abortion mandate, huh? Or is it only the my body my choice for men?

    Bunch of hypocrites.

  18. Skip the mandate, but if you remain unvaccinated and test positive anytime in the future, you’re out of this job. Tough shit.

  19. @johnL yeah! Osha will require too many workplace rules that will keep employees alive. get ride of those safety shoes, belts, harnesses,

    Get rid of those seat belts and air bags in cars they just add $$$ to the car and FORCE us to stay alive. Get ride of the speed limits on the road … the US government is forcing us to slow down to 55 and stay alive.

    Stop using gloves when going to the butcher and for cooks. we do not need to have clean chicken . If god wanted us to be safe he would have done so with out gloves.

  20. TX, FL, AZ – ALL COVID accelerators and covid deniers. These pukes killed a lot of people and ruined lives.

  21. FAA medical regulations PROHIBIT the pilot from exercising the privileges of his pilot certificate when using drugs that haveNOT been approved by FDA for LESS than ONE YEAR.
    FAA cannot waiver regulations (example the Age60 Rule) without Congressional approval.

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