“No Vaccination Passports”: What Does Abbott Mean?

Texas Governor Greg Abbott signed an Executive Order on April 5, 2021, purporting to ban “vaccination passports” in Texas. But Texas employers are asking, “What does this mean for my business?”.

Abbott has said that in Texas “vaccinations are voluntary and never forced.” He continued by saying:

Government should not require any Texan to show proof of vaccination and reveal private health information just to go about their daily lives. That is why I have issued an Executive Order that prohibits government-mandated vaccine passports in Texas. We will continue to vaccinate more Texans and protect public health — and we will do so without treading on Texans’ personal freedoms.

https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-mandated-vaccine-passports

Of course, that press statement only addresses the government’s role and says nothing that clarifies how private Texas businesses are supposed to respond.

“Vaccination passports”, in the form of written documentation of having received a vaccination, have been used for years to prevent global travelers from spreading diseases. They are also required in most public schools (although Texas allows parents to sign an written opt out form because of vaccination objections).

Your college student probably had to prove vaccination for meningitis before moving into a dormitory. Few Texans cried “governmental overreach” when that meningitis vaccination requirement assured that their 18-year-old son or daughter would be protected from a potentially fatal disease that rapidly spreads in communal environments such as dorms.

Indoor sports arenas, performing arts centers, and live music venues have been hoping that vaccination passports would allow those venues to assure the public that they are once again safe to come back to live performances while sitting 18″ from the person in the next seat for a couple of hours.

But like masks, COVID-19 vaccinations have become a political hot potato. Gov. Abbott, seeking to appease a very vocal minority, generated headlines that proclaimed “Abbott Bans Vaccination Passports”. Once you dig down into the actual wording of Gov. Abbott’s Executive Order, you find that only these actions are prohibited:

  • Governmental entities in Texas (cities, counties, state agencies, etc.) cannot require citizens to get vaccinated against COVID-19. Of course, that wasn’t occurring.
  • Governmental entities cannot require proof of vaccination before providing a governmental service or allowing someone to enter government-owned property.
  • A governmental contractor (private business receiving public funds through grants, contracts, loans, etc.) cannot deny entry or service to a consumer for failure to provide documentation of vaccinated status. But businesses can still screen customers for COVID-19 symptoms.

Everything in the Executive Order is tied to governmental status or governmental funds. There is nothing in the order about what private businesses that don’t receive governmental money can require of consumers or employees. And the order makes it clear that nursing homes and other long-term care facilities can indeed require vaccination passports.

Presumably, when Gov. Abbott says governmental contractors can deny services to consumers for failure to disclose vaccination status , his order applies only to those contractors who receive state or local governmental money, since he has no jurisdiction over federal dollars. So, unless you are a contractor for the State of Texas or your local county or city, your business can make its own rules about whether unvaccinated customers can enter your business or not.

There is nothing in this order regarding employees of private businesses. So all private businesses in Texas (whether governmental contractors or not) still have freedom to determine within their own premises whether the business wants to require employees to get vaccinated or at least incentivize employee vaccination in order to provide a safe workplace. As long as the business reasonably accommodates an employee’s disability or religion, any private business can require “vaccination passports” of employees.

Of course, businesses will get a few complaints from employees about mandatory vaccinations. Some businesses where health is a priority (physician offices, food providers, personal services, etc.) will stand strong and require vaccinations. Texas is an “at will” employment state, so employees of private businesses in Texas who want to be “free” of vaccination requirements can also be “free” of employment. Governor Abbott’s order does nothing to change the reality of at will employment in Texas.

Other businesses will allow unvaccinated employees to continue to work, but also require them to wear masks, work from home or otherwise be separated indefinitely from their coworkers who had the good sense to take advantage of a free and fantastically effective solution to a pandemic that has left at least 550,000 Americans dead (more than 10% of whom were Texans).

Other private employers will throw up their hands in despair over being required once again to police the pandemic because government has abdicated its role. Those businesses will avoid the topic of vaccinations altogether and just hope their staffs stay well, despite the OSHA requirement that businesses take reasonable steps to provide their employees with a safe workplace.

If you want to comment in person to Governor Abbott at the state capitol about this order, you will not be able to just flash a card or phone app showing you have full immunity through vaccination from COVID-19. No, to complain there, you will be strongly advised to wear a mask over your nose and mouth at all times, occupancy will be limited and you will be required to socially distance while there. And don’t bother to request a public tour of the capitol building. Those are still banned to protect Governor Abbott and our other state politicians from COVID-19.

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