Gov. Abbott bans vaccine passports for state agencies, organizations that get taxpayer funding
Gov. Greg Abbott on Tuesday banned leaders of state agencies and other taxpayer-funded entities from requiring "vaccine passports," joining a growing number of Republican leaders who have pushed back on the idea of showing proof of vaccination for services.
"The government should not require any Texan to show proof of vaccination and reveal private health information just to go about their daily lives," Abbott said in a video released early Tuesday morning. "We will continue to vaccinate more Texans and protect public health, and we will do so without treading on Texans' personal freedom."
Abbott's executive order does not address private businesses requiring a vaccine passport system for customers, although the order applies to private entities currently receiving and set to receive public funds "through any means," including grants, contracts, loans or other disbursements of taxpayer money. That includes money from local governments.
"No consumer may be denied entry to a facility financed in whole or in part by public funds for failure to provide documentation regarding the consumer's vaccination status," the order reads.
The order also bans state agencies or political subdivisions in Texas from creating a passport requirement or "otherwise conditioning receipt of services on an individual’s COVID-19 vaccination status."
Vaccine passports or credentials have gained momentum among private companies as a way to ask for proof of vaccination against COVID-19 as part of reopening. Other countries are working to create their own passports for travel.
But White House press secretary Jen Psaki said Tuesday there would be no federal mandate to require every American to obtain a passport. Psaki added that the White House would not play any role in a vaccine passport system.
"Americans' privacy and rights should be protected so that these systems are not used against people unfairly," Psaki told reporters Tuesday, adding that private sector efforts to require vaccine credentials for large crowds were an independent effort.
New York is the only state with a vaccine passport system, using a code on a cellphone application to show if someone has been vaccinated or recently tested for COVID-19.
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Vaccination credentials have become the latest partisan flashpoint during the coronavirus pandemic, gaining the most resistance from Republican lawmakers, whose base is more likely than other groups to decline to be vaccinated.
In his executive order, Abbott urged the Texas Legislature to put the ban into law.
Abbott issued the order under the state's disaster declaration for COVID-19, which gives the governor sweeping authority over state agencies, commissions and more. He first issued the declaration March 13, 2020, as the pandemic began spreading through Texas.
Under state law, the declarations expire in 30 days unless renewed by the governor, meaning that when Abbott eventually chooses not to renew the declaration, his executive orders would expire.
'A political issue'
It's unclear whether any Texas agencies or private entities that receive public funds had plans to require proof of vaccination.
James Moody, owner of the Red River Cultural District venue the Mohawk, said his club would not have the staff to manage enforcement of a vaccine passport, adding that most venues laid off almost all their employees at the onset of the pandemic. The Mohawk received a grant from the Austin Creative Space Disaster Relief Program under the auspices of the city of Austin.
“When you staff back up, you have to staff back up for the things you need most, which is health and safety, you know, bartending, back of house, sound, all that stuff," Moody said. “I see it being a political issue. I don't see it as being a viable logistical issue long term."
State-run facilities have not required vaccines before entrance. A negative COVID-19 test or proof of vaccination is "strongly encouraged" but not required to enter the Texas Capitol complex, according to the State Preservation Board.
The Texas Senate requires a negative test, conducted in a tent outside the Capitol's north entrance, or proof of vaccination before entering the Senate floor, the gallery or a Senate committee room for a hearing. The House does not require testing for those entering the chamber or a committee hearing.
Meanwhile, University of Texas spokesman J.B. Bird said the university does not require vaccinations among faculty, students or staff and does not have plans to do so.
Texas universities, which receive state funding, would fall under the order.
Michelle Strowhiro, an employment adviser and lawyer at McDermott Will & Emery, said the order could be ripe for legal challenges because Abbott has said his additional power in a disaster declaration is to protect the health and safety of Texans.
"Gov. Abbott is pointing to the right of the governor to address the dangers of the state and the people presented by disasters," Strowhiro said. "It is certainly a tenuous argument that they're making here in this order that they can reach private entities from a safety perspective. The concern seems to derive from privacy and personal freedoms, not so much related to safety related to the disaster."
Lindsay Wiley, director of American University Washington College of Law's Health Law and Policy Program, said the governor's statutory authority might be broad enough in the case of a legal challenge. Abbott's executive order suspends provisions of the health and safety code, and Texas statute allows him to suspend any regulation that, in his opinion, stands in the way of disaster response, Wiley added.
"It's not a foolproof legal challenge that would be available, but I could see it being challenged," Wiley said, adding that some industries in other parts of the country have pushed for proof of vaccinations, including nursing homes operators, health care facilities, jails and detention centers. "But given that the governor has expressed such opposition to that, I don't know that businesses in Texas will be interested in pushing back against this order."
Abbott's order focuses on consumers, rather than requirements for employees. The Equal Employment Opportunity Commission has allowed companies to mandate flu shots and other vaccines, and has also indicated they can require COVID-19 vaccines.
Employees who refuse to get an employer-mandated vaccination might not get fired, but they might be required to sign a waiver or agree to work under specific conditions to limit any risk they might pose to themselves or others.
More than 8.1 million Texans, or about 28.5%, have received at least one dose of a coronavirus vaccine. Abbott and state health officials have attributed declining cases and hospitalizations to the increase in vaccines, although some health experts say it's too soon to see the impact of vaccinations.
Staff writers Deborah Sengupta and Asher Price contributed to this report.