Tom Hals

(Reuters] – Texas Governor Greg Abbott’s ban on COVID-19 vaccine requirements will probably be overthrown by the Biden administration’s plan to mandate shots for workers. But the two rules could take many months in court. This creates uncertainty for employers who do business in Texas.

On Monday, Republican governor John Kasich signed an executive ordering banning private entities and employers from imposing COVID-19 mandates. This was in response to the threat of economic recovery through disruptions in the workforce.

Southwest Airlines (NYSE) Co and American Airlines, both based out of Texas, announced on Tuesday that they plan to continue to implement plans to meet a December 8 deadline to federal contractors who must have all employees vaccinated.

“Companies recognize they have to comply with one or the other but not both, and the Texas order is more likely to be struck down than the federal order,” said Steve Cave, a King & Spalding attorney who specializes in government contracts.

It is forbidden for states to interfere with federally-valid laws by the supremacy clause in the U.S. Constitution.

Abbott ordered that no Texas entity could compel vaccination proof from any individual. This includes employees and customers. While a $1,000 penalty could be imposed for non-compliance, Abbott was not clear on how that would happen.

Biden’s administration revealed on September 9 that it will be requiring approximately 100 million Americans to have their vaccines or undergo weekly testing. The plans are not all complete and may not be legally binding.

Biden is a Democrat and issued the mandate while his administration was trying to stop the pandemic that has claimed the lives of more than 700,000. Proponents regard mandates as constitutional and authoritarian. Critics view them as illegal and autoritarian. However, they are seen as vital to relieve the nation from the two-year-old outbreak and restore normalcy.

Companies could opt to challenge Abbott’s orders by issuing mandates, and then, if fined, contest the amount in court.

Biden would argue that companies were following his mandate. Experts say legal precedents favor federal law over state law in cases of conflict.

Cave stated, “This will turn into a battle about who is supreme over the other. There’s also a game between Governor Abbott (and the Biden administration”)”.

“Having to THREAD the NEEDLE”

Florida provides an illustration of how this might look.

Norwegian Cruise Line (NYSE -) Holdings Ltd. won a battle with a Florida law prohibiting them from requiring their customers to present proof of vaccination. This was a requirement that the cruise company had to make in order to meet federal health regulations. Judge deemed the argument of Norwegian Cruise Line (NYSE:) Holdings Ltd “compelling.”

Texas could present obstacles for employers.

Biden’s vaccine plan is based largely on OSHA emergency safety rules for workplaces.

24 attorneys general from the states have already pledged to challenge them once those rules are in place.

Some experts in legal matters suggested that OSHA could be stopped if challengedrs prove the government is not able to show a national “grave risk” as required under law.

OSHA could be held responsible if the rule is invalidated or enacted in court.

Due to uncertainty, companies could decide to follow both orders.

Kevin Troutman of Fisher Phillips’ Houston office, who represents employers, stated that businesses may allow their employees to refuse vaccinations by submitting to weekly testing. The Biden administration suggested this could be an option to vaccines.

He said, “It might make it possible to test something more employers are interested in considering and implementing more broadly.” This requires more planning, attention, and can cause more headaches.

Brian Dean Abramson is a vaccine specialist and an author. He questioned whether Texas would enforce the mandate ban on employers. However, he stated that most companies would be able to heed the warning and take appropriate action.

“The employer will be in a position of having to thread the needle of establishing a vaccine policy that doesn’t run afoul of what Abbott requires and run afoul of what the Biden administration is requiring,” he said. Federal law will ultimately prevail.”