In the first ruling of its kind nationwide, a federal court in Texas has upheld a hospital’s policy requiring employees to be vaccinated against COVID-19 as a condition of continued employment.
The hospital’s policy carves out narrow exemptions for medical conditions or sincerely held religious beliefs and provides a three-month phase-in period to obtain any of the three vaccinations authorized on an emergency use basis by the FDA.
A nurse, Jennifer Bridges, joined by 116 other employees of Houston Methodist Hospital, (less than 0.5% of all employees), initially filed suit in Texas state court seeking to prevent the Hospital from enforcing its mandatory vaccination policy. Notably, at the time the action was filed, 24,947 of the Hospital’s approximately 26,000 employees were already vaccinated. The Hospital removed the case to the federal court, citing the FDA’s “emergency use authorization” of the vaccines as a federal issue.
Wrongful Termination Alleged
The plaintiffs sought to forestall enforcement of the requirement that Hospital employees be vaccinated by June 7, 2021 or face termination, arguing that COVID-19 vaccinations are experimental and dangerous. The suit alleged that termination for failure to comply would amount to wrongful termination under Texas law.
The court, in its June 12, 2021 decision in Bridges v. Houston Methodist Hospital, granted the Hospital’s motion to dismiss all the plaintiffs’ claims. It held that Texas wrongful termination law protects employees only when their firing stemmed from refusing to commit an act carrying criminal penalties. The plaintiffs, the court said, failed to specify the illegal act that they refused to perform.
The plaintiffs also alleged that the vaccination requirement violated public policy. But the court held that Texas law does not recognize a public policy exception to at-will employment on that basis and, even if it did, the Hospital’s requirement was consistent with public policy, including policy embodied in holdings from the Supreme Court and guidance from the Equal Employment Opportunity Commission.
In addition to their wrongful termination claims, the plaintiffs alleged that the vaccine requirement violated their option under federal law to accept or refuse administration of the vaccine. In dismissing the claim, the court explained that the plaintiffs had misconstrued 21 U.S.C. Section 360bbb-3, which relates to a requirement of the Secretary of Health & Human Services to ensure that recipients of medical products introduced into interstate commerce intended for use in an emergency be informed of potential benefits and risks of its use, and given the option to accept or refuse administration of the product. The provision does not apply to private employers and does not relate to the authority under “emergency use authorization.”
‘Human Subjects’ of Research
The plaintiffs also alleged that they were akin to “human subjects” participating in research, and therefore needed to consent to the vaccination in accordance with the regulations governing human subject research in part 46 of the Code of Federal Regulations. The court again noted that the plaintiffs had misconstrued the applicable provision and held that the protections under the Human Subject Research Law are inapplicable to the Hospital because the law applies to the government, not a private employer.
The court rejected as “reprehensible” the plaintiff’s attempt to equate the Hospital’s policy with the atrocities of medical experimentation in the concentration camps.
The lawyer for the plaintiffs has indicated that his clients will be appealing the decision. In the interim, several major hospitals throughout the country have promulgated similar policies. It is expected that there will be a ripple effect of these policies, particularly considering this decision.
Practical Steps for Employers
For hospitals and other employers contemplating a COVID-19 vaccination mandate, here are some helpful tips:
- Make sure that the policy clearly articulates the legitimate essential health and safety concerns that serve as the basis for protecting your staff, customers and other third parties by generally requiring proof of COVID-19 vaccination.
- Include provisions that enable employees to request a reasonable accommodation for a disability or medical contraindication or for a sincerely held religious belief or practice, that would preclude vaccination and not create an undue burden for the employer.
- Document all communications with employees in the context of the policy.
- Provide a reasonable timeline for phasing-in vaccinations.