Mandatory Vaccination Policies Remain Hot Issue for Healthcare

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On June 12, 2021, a federal judge in the Southern District of Texas dismissed a case filed by 116 hospital employees who challenged Houston Methodist Hospital’s (the “Hospital”) mandatory COVID-19 vaccination policy. Jennifer Bridges, et al. v. Houston Methodist Hospital, et al., Civil Action H-21-1774 (entered June 12, 2021) is the very first decision analyzing and ruling on the right of healthcare employers to implement a COVID-19 mandatory vaccination policy.  While to date this decision is unpublished and not binding on other courts, it is a well-reasoned decision that provides guidance and insight as to how courts may rule in the future, especially with respect to the healthcare industry and given industry-specific guidance on vaccinations.

In April 2021, the Hospital announced that it would require employees to be vaccinated against COVID-19 by no later than June 7, 2021, unless they had a sincerely held religious belief or medical condition that required an accommodation.  Prior to litigation, the Hospital granted 300 exemptions from the mandate and 332 deferrals to employees for pregnancy and other reasons.

In May 2021, 116 employees filed a lawsuit alleging that the Policy was unlawful and, if enforced, would result in the wrongful termination of numerous Hospital employees.  Plaintiffs sought an immediate injunction to prevent the Hospital from terminating any employee who refused to get vaccinated, arguing that the currently available vaccines are “experimental” and “dangerous,” among other things.  The Hospital moved to dismiss the case on the grounds that Plaintiffs’ wrongful termination claim failed as a matter of law.

On June 4, 2021, Judge Lynn N. Hughes denied Plaintiffs’ request for a temporary restraining order, stating that such an order would temporarily block the Hospital from enforcing the Policy, which would “disserve the public interest” as the “public's interest in having a hospital capable of caring for patients during a pandemic far outweighs protecting the vaccination preferences of 116 employees."

On June 12, 2021, following a lengthy oral argument, Judge Hughes issued a 5-page written decision wherein he concluded the following:

  • Terminating employees who refuse to comply with the Policy is not “wrongful” under Texas state law, noting that “Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker.”  As Plaintiffs failed to identify any criminal act that they refused to perform, Judge Hughes concluded that Plaintiffs failed to state a wrongful termination claim under Texas law.  In addition, Judge Hughes concluded that even though there was no public policy exception to at-will employment under Texas law, the injection requirement is consistent with public policy, as decided by the United States Supreme Court.
  • Citing to the Equal Employment Opportunity Commission guidance on mandatory vaccination policies in the workplace, Judge Hughes further concluded that the Policy did not violate public policy because it allows reasonable accommodations for employees with disabilities and sincerely-held religious beliefs that precludes vaccination.
  • The Policy does not violate federal law. Plaintiffs argued that a mandatory vaccine policy violates federal law that requires the Food and Drug Administration to fully approve a vaccine before it can be administered without consent.  Citing federal law that authorizes the Secretary of Health and Human Services to introduce medical products intended for an emergency provided the product recipients understand “potential benefits and risks of use” and the “option to accept or refuse administration of the product,” Plaintiffs argued that the Policy does not comply with these provisions if employees are compelled to be vaccinated. Rejecting this argument, Judge Hughes noted that the provision relied upon by Plaintiffs “does not apply . . . to private employers like the hospital in this case” and does not confer a private right of action against an employer.
  • The Policy does not violate federal law governing the protection of “human subjects.”  Similarly, Plaintiffs argued that the Policy violated federal laws requiring informed consent from any human subject participating in a human trial without legal, effective, and informed consent because no currently available vaccine has been fully approved by the Food and Drug Administration.  Judge Hughes also rejected this argument noting that employees are not participants in a human trial and therefore the federal law governing injections into human subjects, does not apply; moreover, the judge flatly rejected Plaintiffs’ attempts to liken the non-existent injections requirement to Nazi doctors’ medical experiments on Holocaust victims.
  • Lastly, the Court concluded that the employees were not “coerced” to obtain the vaccine under the Policy, reasoning that employees are free to accept the COVID-19 vaccine (and continue working at the Hospital) or refuse and will “simply need to work somewhere else.”  Further, that such limitations on the workers’ behavior in exchange for pay is “all part of the bargain.” (A full copy of Judge Hughes’ Order can be found here.)

This is an important decision for healthcare employers as they work to protect their frontline workers and patients during this pandemic.  Nevertheless, this issue is far from settled as Plaintiffs have vowed to appeal Judge Hughes’ ruling, and similar claims are being pursued in other jurisdictions throughout the United States.

In particular, in California where the standard for proving a wrongful termination claim is less onerous and requires merely a causal link between the employee engaging in protected activity (even if mistaken under the law) and a termination or other adverse employment action, it remains to be seen whether employees who refuse to be vaccinated and terminated as a result, will be able to withstand such motions to dismiss.  As the Courts work through these claims, healthcare employers that are contemplating mandatory vaccination policies should consider the following:

  • Limiting the application of mandatory vaccination policies to those employees (or work groups) having direct contact with patients and/or other employees responsible for providing direct patient care.
  • Provide a process by which employees who refuse to get vaccinated based on sincerely-held religious beliefs and/or disabilities can seek an accommodation through the interactive process.
  • Confer with competent legal counsel to ensure that the policy and related process comply with local, state and federal laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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