On Saturday, June 12, 2021, a Texas District Court ordered dismissal of a lawsuit brought by over 100 employees of the Houston Methodist Hospital who claimed they were subjected unlawfully to a COVID-19 vaccination policy as a condition of continued employment. Although the plaintiffs’ counsel has said they plan to appeal the decision, the order provides helpful precedent for other private employers who have imposed, or are considering, such vaccination mandates, and it may discourage other employee groups from filing suit.
The complaint alleged that the hospital implemented a phased-in immunization requirement on April 1, 2021. The latest deadline for all employees to be vaccinated was June 7, 2021. Those not in compliance faced discharge if still not vaccinated after a two-week suspension.
Employees could fulfill the requirement by receiving through the hospital or from a third-party provider any of the three types of vaccine that have received Food and Drug Administration (FDA) emergency use authorization (EUA). Alternatively, they could request exemption based on a medical condition (including pregnancy) or sincerely held religious beliefs, although the plaintiffs claimed that the hospital arbitrarily denied such requests.
The plaintiffs claimed the policy forced them into injection with an experimental vaccine and invoked the Nuremberg Code in likening the requirement to medical experiments conducted in Nazi Germany concentration camps. They further claimed that discharge for refusal to be vaccinated constituted wrongful discharge under Texas law, under which employers may not lawfully discharge employees for their refusal to perform illegal acts. They did not specify what illegal act the policy required them to perform. They also, as in several similar lawsuits previously filed against public employers, invoked the federal Food, Drug, and Cosmetic Act, 21 U.S.C. §360bbb-3, which provides that individuals must be informed they may refuse vaccines that have EUA but not full, standard FDA approval.
District Court Judge Lynn Hughes rejected each of plaintiffs’ arguments. The Court held that 21 U.S.C. §360bbb-3 applies to powers and responsibilities of the U.S. secretary of health and human services, and not to private employers. It further held that hospital employees were not being required to serve as human trial subjects for experimental vaccines and, in any event, the Nuremberg Code similarly applies to governments and not private employers. The order concludes by analogizing the vaccination requirement to other workplace directives such as start times and work assignments with which employees must comply in order to avoid being “properly fired.”
The Court also addressed the plaintiffs’ argument that the injection requirement was contrary to public policy. The Court noted that Texas law does not recognize such an exception to at-will employment but in any event, the Supreme Court has rejected due-process challenges to involuntary quarantine for contagious disease and state-imposed mandatory vaccination requirements. It further referenced recent Equal Employment Opportunity Commission guidance that employers can require employers who are not precluded from doing so by disabilities or sincerely held religious beliefs to be vaccinated against COVID-19.