On Oct. 11, Texas Gov. Greg Abbott issued an executive order that bans any entity in Texas from enforcing a vaccine mandate, which directly conflicts with the Biden administration’s rules requiring all federal contractors and large businesses to be vaccinated.
The executive order states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
The order supersedes any conflicting local orders. Any business or employers found in violation are subject to a fine.
"The COVID-19 vaccine is safe, effective, and our best defense against the virus, but should remain voluntary and never forced," said Abbott.
The conflicting orders could cause headaches for roofing contractors working in Texas. President Joe Biden’s COVID-19 action plan, announced in September, requires employers with 100 or more employees to either vaccinate their workforce or undergo regular testing. Federal contractors are to be vaccinated by Dec. 8 with no testing alternative available to them.
Employers are also required to give paid time off to employees getting the vaccine or recovering from its side effects.
The Occupational Safety and Health Administration (OSHA) will create and enforce the rule, but the exact wording of the rule and when it will take effect is unclear. Abbott’s executive order took effect immediately.
According to Trent Cotney, CEO of Cotney Attorneys & Consultants, the executive order gives leeway to allow employers to make their own decisions about getting vaccinated, but contractors shouldn’t expect it to remain in place.
“Once OSHA issues the vaccine rule, they may be obligated to enforce a vaccine mandate,” Cotney said. “So, while Gov. Abbott is attempting to shield his state from the mandate requirement, OSHA’s eventual actions many overrule his order.”
Part of the reason OSHA’s regulation will likely supersede the executive order is the Supremacy Clause in the U.S. Constitution. This says federal law takes precedence over state laws, meaning federal contractors will have to abide by the federal government’s vaccine mandates.
OSHA is creating an emergency temporary standard (ETS) to enforce the mandates. The agency submitted text for the new vaccine rule for large employers on Tuesday to the Office of Management and Budget and indicated is not taking public comment.
The Construction Industry Safety Coalition, made up of 26 industry associations including the National Roofing Contractors Association, sent a letter to OSHA stating its concerns about the ETS procedures. The coalition contests that the ETS could have significant implications on the industry, such as worsening the ongoing labor shortage and the economic impact of employers required to provide paid time off on top of potentially paying for weekly testing.
“OSHA must ensure that it fully considers all of the very difficult issues involved in implementing the Plan through an ETS,” the letter states.
The coalition states it supports Biden’s goal of increasing vaccinations among the population, though it notes OSHA generally considers the construction industry as low risk for COVID transmission and exposure.