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.