(Reuters) -Texa Governor Greg Abbott's ban on COVID-19 vaccine mandates is likely to be replaced by the Biden administration plan to demand shots for workers, but the dueling rules could take months to sort out in court, creating uncertainty for employers with companies in the state.
The Republican governor on Monday signed a restraining order banning private employers and other entities from introducing COVID-19 vaccine mandates, which he said threatened an economic recovery by disrupting the workforce.
Some major employers are betting that federal law and President Joe Biden's vaccine mandate will exceed Abbott's executive order.
Southwest Airlines Co. and American Airlines, both based in Texas, said on Tuesday that they would move forward with plans to meet a Dec. 8 deadline for federal contractors to get their employees vaccinated.
"Companies realize they have to follow one or the other but not both, and the Texas order is more likely to be structured than the federal order," said Steve Cave, a King & Spalding lawyer specializing in government contracts.
The supremacy clause in the US Constitution prohibits states from violating valid federal laws.
Mr. Abbott's order states that "no unit in Texas" can force evidence of vaccination of any individual, including employees or customers. Failure to do so could result in a $ 1,000 fine, although Abbott did not say how the order would be executed.
On September 9, the Biden administration announced a plan that would require approximately 100 million American workers to be vaccinated or submitted. for weekly testing. Many of the plans have not yet been detailed and do not yet have legal force.
Mr. Biden issued the mandate as his administration fought to control the pandemic, which has killed more than 700,000 Americans. Critics of Mandate see them as constitutional and authoritarian, but proponents see them as necessary to pull the country out of the nearly two-year pandemic and return to normal.
Companies can choose to test Abbott's orders by introducing mandates and then, if they become fines, challenge the fines in court.
Companies would probably argue that they follow Mr. will turn into a fight over who has supremacy over the other and there is a game of chicken between Gov. The Abbott and Biden administration, says Cave.
Florida offers an example of what it might look like.  Norwegian Cruise Line Holdings Ltd. won a lawsuit in August over a Florida law banning it from requiring customers to show proof of vaccination, which the cruise line said they must do to comply with federal health regulations. The judge called the company's argument "convincing."
However, employers may face obstacles in the Texas case.
Most of Biden's vaccination plan is based on workplace safety rules that will soon be issued by the Occupational Safety and Health Administration.
At the time of writing, 24 state attorneys have generally pledged to oppose them.
Some legal experts suggested that the OSHA rule could be blocked if challengers could show that the government could not prove that there is a national "Serious Danger" by law.
If OSHA's rule is bound in court or ruled invalid, it may make it more difficult to argue that federal law should precede Abbott's order.
Given the uncertainty, companies may try to follow both orders.
Kevin Troutman, a lawyer in the Houston office of Fisher Phillips, representing employers, said companies could allow employees to opt out of vaccinations if they leave weekly tests, which the Biden administration has said could be an alternative to vaccination.
"It may make the opportunity to test something more employers want to consider and implement to a greater extent," he said. "It requires more planning and attention, and it creates more headaches."
Brian Dean Abramson, a specialist and author of vaccine laws, questioned whether Texas would actually enforce the ban by going after employers. But he said the threat was probably enough for most companies to take action.
“The employer will know the thread of establishing a vaccine policy that does not conflict with what Abbott demands and crashes. what the Biden administration requires, he says. "But in the end, federal law will prevail." Catalog