COVID-19 Vaccine or Termination? Judge Upholds Employer Mandate

Dana Ring is a partner in Wood Smith Henning & Berman’s Dallas office. Her practice focuses on providing clients’ executive teams with strategic business advice on labor and employment issues, triaging and resolving pre-litigation employment claims, and litigation management.  In addition to managing a nationwide docket of pre-litigation employment matters, Dana counsels employers on matters related to wrongful discharge, retaliation, harassment, discrimination, wage and hour compliance, FMLA leave and employment agreements.

Houston Methodist Hospital Can Fire Employees Who Refuse the COVID-19 Vaccine

In a recent decision the U.S. District Court of the Southern District of Texas, a federal judge dismissed a lawsuit filed by 117 employees against Houston Methodist Hospital, claiming that it was unlawful for the hospital to fire employees who refused to take the vaccine. Bridges v. Houston Methodist Hospital, No.4:21-CV-01774 (U.S. District Court for the Southern District of Texas).  This ruling is significant for employers as it is the first decision of its kind regarding an employer-mandated vaccination requirement as a condition of continued employment.

With concerns about the Delta variant looming and businesses doing their best to reopen fully in a safe manner, many employers may opt to require employees to get the COVID-19 vaccine.  This court decision provides a strong starting place for employers who wish to take this step, but it must be noted that there is no guarantee that courts in other sections of the country will come down on the side of employers on this issue; especially those who have recognized statutory causes of action for wrongful termination on public policy grounds. As with everything COVID-related, it is an evolving issue with constantly moving parts.

Why did the Hospital Employees File Suit?

In April 2021, Houston Methodist Hospital (“HMH”), a private business, announced to its employees that receiving a COVID-19 vaccine was required to continue their employment.  HMH, which includes an academic medical center and six community hospitals, was the first large-scale medical institution to mandate COVID-19 vaccinations for all of its approximately 26,000 employees. HMH rolled out the vaccination policy by first requiring it of members of the management team. 99% of the managers received the vaccine by the requested deadline, with the other 1% being granted exemptions on the basis of medical conditions and sincerely-held religious beliefs.  The next phase of the rollout required the remaining staff members to complete both doses of the COVID vaccine by June 7, 2021, or receive a two-week suspension. If the requirement was not met by June 21, 2021, the non-complying employees would be fired.

117 nurses and other employees filed suit against the hospital asserting that it was unlawful for HMH to require the vaccine or suffer termination. The plaintiffs further argued that the vaccine is experimental, dangerous, and forced them to act as “human guinea pigs” in violation of the Nuremberg Code. The plaintiffs also requested a temporary restraining order to stop enforcement of the policy and prevent any employment terminations for employees who refused to comply.  HMH filed a motion to dismiss all of the employee claims.

The Court Ruled in Favor of the Employer

The court dismissed the case on several grounds. First, the court reasoned that Texas law only protects employees from being terminated for refusing to commit an illegal act, and determined that receiving a COVID vaccine is not illegal. The court also looked to guidelines released by the federal Equal Employment Opportunity Commission (EEOC) on May 28, 2021, which specifically allows for employer-mandated vaccinations so long as employees are accommodated with exemptions on medical or religious grounds.  In this case, the evidence showed that such exemptions were provided to applicable employees.  The court also noted that hospitals and medical facilities may have a greater justification than other businesses for mandating vaccination against COVID-19, as medical employees are at higher risk of exposure and are more likely to interact with vulnerable populations due to the nature of their work.

The court also looked specifically to the rules of at-will employment and found that Texas law does not recognize a public policy exception for at-will employment.  Still, the court went further and found that, even if it did, the mandated vaccine policy is not contrary to public policy.  This may provide persuasive precedent in jurisdictions like California that enacted statutes providing a cause of action for wrongful termination in violation of public policy.

As to the plaintiff’s argument that the vaccines were only approved by emergency order of the FDA and therefore should not be imposed on those who choose to refrain from taking the vaccine, the court ruled that this fact does not impact private employers. The court found that the FDA emergency authorization neither restricts nor expands the rights and responsibilities of private employers, and was persuaded by the fact that HMH was not forcing the vaccine into the arms of its employees, but rather gave employees a choice to take the vaccine if they wished to continue their employment with the hospital.  Employees who choose not take the vaccine are still making a voluntary choice:  they chose to work elsewhere.  The court emphasized that with at-will employment, termination may lawfully follow if an employee refuses an assignment, insists on different work hours, violates company policies, etc.  In this case, the court found that HMH’s policy requiring a COVID vaccine is no different, just like the commonly-accepted fact that hospitals and other medical institutions have long required employees to be vaccinated against certain conditions such as hepatitis and the flu. It reasoned that the COVID vaccine is not dissimilar to those requirements.

Finally, as to the plaintiffs’ claim that the employer-mandated vaccination program violated the Nuremberg code, the court admonished plaintiffs’ counsel for drawing such a ghastly parallel.  The Nuremberg code was established in 1947 at the close of World War II and serves as a medical ethics code prohibiting forced medical experimentation on human beings. The court described this claim “reprehensible” and rebuked the plaintiffs for likening a voluntary COVID-19 vaccination policy to the human experimentation the Nazis performed on kidnapped victims in prison camps during the war. The court likewise rejected classification of the vaccine as “experimental and dangerous”, dismissing the entire argument outright.

Notes for Employers Considering Required Vaccines for Employees

  • Judicial outcomes on this issue are likely to vary around the country, as will statutorily-enacted protections that may apply. Montana, for example, became the first state to recognize a person’s vaccination status as a protected category. Employers in that jurisdiction may not require employees to get vaccines or to reveal their vaccination status. It is unknown if other states will proceed in this same vein, but it is important to watch the local legislative developments.
  • Any employer that decides to implement a mandatory COVID vaccination policy should be prepared to face a potential class action. Typically, a wrongful termination case would be filed by an individual employee. In this new burgeoning area, businesses may face claims from a group of employees rather than an individual.
  • Before implementing a mandatory vaccine policy, employers should formally communicate to its work force why having vaccinated employees is essential for health and safety and furthers the operational goals of the business, and provide time for discussion, reasonable accommodation requests, and the documentation process.
  • Employers should have a clearly-written policy exemption for those who wish to opt out of the vaccine for sincerely-held religious beliefs or medical necessity. Employers should also detail in a written policy how they will continue to protect those employees who are not vaccinated by way of continued social distancing, workplace layouts, creative meeting attendance, masking, working remotely and other accommodations. A well-conceived accommodation plan may well increase the likelihood of success in dismissing or defending a lawsuit filed in opposition to a vaccination policy.
  • Be sure to communicate and thoroughly document all communications – including processes and logistics of implementation – with employees regarding how the employer will document vaccination status. Some employers may elect to proceed with a Vaccine Attestation form, relying on the “honor system” for employees to report vaccination status.  Others may impose a mandatory reporting policy that requires proof of vaccination, providing it remains lawful in their jurisdiction.  Regardless of how it is disclosed, all employers should maintain strict confidentiality of vaccination status, just like all other private HIPAA-protected employee information, keeping any documentation of such in a separate confidential medical file separate from the personnel file.

As our world continues to evolve, employers are encouraged to consult with Human Resources business partners and legal counsel when crafting and implementing new policies in the workplace.  The attorneys at Wood Smith Henning & Berman stand at the ready to help employers navigate employment relationships with wisdom and grace.

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