By Eric Levenson, CNN
Texas Gov. Greg Abbott’s new executive order bans any entity in Texas from enforcing a Covid-19 vaccine mandate — a rule that directly conflicts with President Joe Biden’s proposed rules requiring Covid vaccines for federal workers and for large employers.
The competing rules create a bind for many companies that rely on federal workers, including major airlines Southwest and American Airlines. So what will happen when the state rule and federal rule come up against each other?
In general, the federal law preempts the state one because of the Supremacy Clause of the US 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’s any doubt that those federal contractors will have to honor the mandates directed by the government,” CNN Chief Legal Analyst Jeffrey Toobin said Tuesday.
However, there are plenty of unanswered issues that make it premature to predict what will happen next.
In this case, Abbott’s order states that “no entity in Texas” can enforce vaccination against anyone in the state who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from Covid-19,” according to a news release from the governor’s office.
The definition of “personal conscience” in the Texas law is not made clear, making it difficult to say how courts will interpret whether that conflicts with federal law. In addition, the Biden Administration’s federal rules on contractors have not yet gone into effect, and its rules for large employers have not been finalized, and those are likely to also face legal challenges.
“In areas of public health, more often than not federal law would preempt conflicting state law,” said Debra Friedman, a labor attorney with the law firm Cozen O’Connor. “What’s difficult here is the federal law has not been fully fleshed out, nor has this executive order, and the devil is in the details.”
Timing and exact language unclear
Last month, Biden said he had directed the Labor Department to require businesses with 100-plus employees to ensure 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.
The exact language of that rule has not yet been finalized, though. The Occupational Safety and Health Administration, which falls under the Labor Department, submitted the text of the rule to the Office of Management and Budget on Tuesday.
“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace,” a Labor Department spokesman said.
Toobin said the exact wording of that rule mattered for whether the federal rule will stand up legally.
“I think it’s going to be important to see how that is worded and whether there are any exceptions,” he said Tuesday. “I think that is likely to be upheld as well, but it’s hard to evaluate since that regulation has not yet been put forth by the Biden Administration.”
The timing of these federal rules also could complicate the state-federal conflict. Abbott’s executive order went into effect immediately on Monday, the order states. However, the Biden Administration’s federal contractor rule does not go into effect until December and the large employer rule does not yet have a date.
Labor Secretary Martin Walsh told Axios in an interview that aired on HBO Sunday that the rules are still in the works and will be available “hopefully in the next several weeks.”
Until that happens, employers will have a tricky time balancing the state and federal rules.
“It makes it difficult for employers to thread the needle in terms of complying with current laws,” Friedman said.
Large employers say they’ll follow federal rules
The federal rule mandating Covid-19 vaccines will apply to employees in Texas who work for airlines, at airports, the US Post Office, the Social Security Administration and federal courthouses, according to Jeffrey Abramson, professor of law and government at the University of Texas at Austin.
“Gov. Abbott should know better, and probably does know, that he cannot lawfully apply his ban on all vaccine mandates to federal entities operating within Texas,” Abramson said in an email.
Indeed, several large employers that rely on federal contractors have said they plan to comply with the federal rule requiring Covid-19 vaccination.
Southwest Airlines, based in Texas, noted the Supremacy Clause in its statement, saying it would comply with the vaccine mandate.
“We are aware of the recent order by Gov. Abbott,” said Southwest. “Federal action supersedes any state mandate or law, and we would be expected to comply with the president’s order to remain compliant as a federal contractor. We will continue to follow all orders closely.”
The Greater Houston Partnership, a city business group made up of 900 companies and organizations, said it will continue to support the right of businesses to mandate Covid-19 vaccines.
“Businesses have a duty to maintain a safe work environment, and many have deemed vaccine requirements an important step to get back to business safely and necessary to grow Houston’s economy,” President and CEO Bob Harvey said in a statement.
“The governor’s executive order does not support Texas businesses’ ability and duty to create a safe workplace. While the courts will likely decide the validity of this order, we encourage all employers to continue to promote the importance of vaccinations with their employees,” he added.
In June, the Houston Methodist hospital system instituted a vaccine mandate and parted ways with over 150 employees for non-compliance. Dr. Marc Boom, president and CEO of the system, said in a statement Tuesday they were “deeply disappointed” in Abbott’s order.
“We are grateful we mandated the vaccine early so the order will not have an immediate impact on us. But we are concerned for other Texas hospitals that may not be able to continue their mandates now with this executive order. Health care workers all have an obligation to safely care for their patients and this order makes that promise harder,” Boom said.
“We are reviewing the order now and its possible implications,” he added.
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CNN’s Kaitlan Collins, Paul LeBlanc, Chris Isidore and Rosalina Nieves and contributed to this report.