The Texas Legislature ended its third Special Session this week without passing a bill to enact Gov. Greg Abbot's (R) Executive Order prohibiting employers in the state from mandating vaccination against COVID-19.

Not that the Legislature did not try. Shortly after the Governor issued his Executive Order, two bills were presented – one in the House and one in the Senate. Both bills were criticized for being anti-business. Why? Among other things, the bills contained a very uncharacteristic (for Texas) provision that would have given employees a right to sue employers for damages if employers violated the law. Eek.

Remember, we are talking about Texas here.

Many Texas employers, large and small – including hospitals, nursing homes and health centers – are breathing a collective sigh as the legislators return to their homes. However, the controversy over the "non-mandate mandate" is not over. The Governor's Executive Order is legally binding and still stands, subjecting employers to penalties if they do not comply.

It also remains to be seen how the Executive Order will hold up against the anticipated emergency temporary standard coming from the federal Occupational Safety and Health Administration and forthcoming guidelines from the federal Centers for Medicare & Medicaid Services for health care employers who receive Medicare and Medicaid funds. Both agencies are expected to require covered employers to impose vaccine mandates with limited exceptions.