Approximately ten days after the first federal court decision in the country about mandatory-COVID-19 vaccinations by an employer, Bridges v. Houston Methodist Hospital (the “Hospital”), 153 of the Hospital’s employees were fired or resigned. On June 12th the court dismissed an action brought by a very small cadre of employees of the Hospital to enjoin the implementation of the its policy of requiring employees to be vaccinated against COVID-19 as a condition of continued employment, The five-page decision by U. S. District Court Judge Lynn Hughes the court upheld the Hospital’s mandatory vaccination policy that carved out narrow exceptions to employee-inoculation by any of the three vaccinations authorized on an emergency use basis by the United States Food and Drug Administration (“FDA”) based upon medical conditions or sincerely held religious beliefs.
The action was instituted by a nurse, Jennifer Bridges, joined by one-hundred and sixteen (116) other employees of Houston Methodist Hospital (the “Hospital”) representing less than 0.5% of the employees to prevent the Hospital from enforcing its mandatory vaccination policy. It is important to note that, when the action was filed, 24,947 of the 26,000 Hospital employees were already vaccinated.
The plaintiffs advanced several arguments to support their request to forestall enforcement of the requirement that Hospital employees be vaccinated by June 7, 2021 or face termination. Their arguments principally relied on the assertion that the COVID-19 vaccinations are experimental and dangerous. The court granted the Hospital’s motion to dismiss all the plaintiffs’ claims.
Specifically, the Plaintiffs argued that termination for failure to comply was equivalent to wrongful termination in violation of Texas law. The court held that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties. The plaintiffs failed to specify the illegal act that they refused to perform.
The Plaintiffs also alleged that the vaccination requirement violated public policy. 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 also alleged that the vaccine requirement violated their option under federal law, 21 U.S.C. Sec. 360bbb-3, to accept or refuse administration of the vaccine. In dismissing the claim, the court explained that the plaintiffs misconstrue 21 U.S.C. Sec. 360bbb-3, which relates to a requirement of the Secretary of Health & Human Services to insure 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 related to the authority under “emergency use authorization.”
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 misconstrued the applicable provision and held that the protections under the Human Subject Research Law are inapplicable to the Hospital; the Law applies to the government, not a private employer. Further, the court dismissed the allegation that equates the Hospital’s policy with the atrocities of medical experimentation in the concentration camps as “reprehensible.”
The Plaintiffs are 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. For hospitals and other types of employers contemplating a COVID-19 vaccination mandate, here are some helpful tips:
• Make sure that the policy clearly articulates 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, and;
• Provide a reasonable timeline for phasing-in vaccinations.