Hospital's COVID-19 vaccine ruling good news for employers

Employers were keeping a close eye on a case in which more than 100 workers sued Houston Methodist Hospital over its COVID-19 vaccine mandate.

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More than 100 workers who sued Houston Methodist Hospital over its COVID-19 vaccine mandate are appealing to the U.S. Court of Appeals for the Fifth Circuit, after a trial judge dismissed their claims in just 10 days.

And the ruling has interested employment law attorneys across the country who are applauding because the court rejected one specific argument about emergency use authorization vaccines.

Related: Vaccines in the workplace: Crafting your policy

The ruling means that employers can make workers take a vaccine that’s only authorized for emergency use, and not fully approved, according to employment attorneys from Texas, Florida, Georgia and Washington, D.C.

That emergency-use status has given employers pause, as they debate whether to mandate the vaccine, and it’s come up in a half-dozen lawsuits.

“Being that it’s a federal judge in Texas, it could be persuasive to people around the country, given what the [U.S. Equal Employment Opportunity Commission] has said, and what [the Occupational Safety and Health Administration] has said,” according to Daniel Patton, a shareholder in Scott Patton in Houston who represented defendant Houston Methodist. “Employment lawyers around the country would recommend that it’s safe for an employer to mandate a vaccine, and not worry about legal repercussions.”


Read the ruling


‘Somebody is going to get sued’

Dismissal order

U.S. District Judge Lynn Hughes of Houston on Friday ordered the dismissal of the 116 hospital employees’ claims in a sharply worded order that called some of their allegations false and reprehensible.

The plaintiffs argued that the hospital violated the law because it couldn’t force them to take unapproved medicines, and that the Food and Drug Administration had not fully approved the COVID vaccines.

The judge said the plaintiffs had misread a statute that allows the secretary of the Department of Health and Human Services to allow emergency medical products, while ensuring that people know the risks and benefits and are allowed to accept or reject the treatment. According to the ruling, the statute has no application to private employers such as Houston Methodist. The law in question also doesn’t allow a person to sue the government or an employer, the order said.

The order said that the plaintiffs also misconstrued a law that prohibits the use of coercion or undue influence when gaining a person’s consent to participate in a clinical trial. The plaintiffs alleged they were being forced into a human trial by the threat of termination. That misrepresented the facts, the court ruled.

“The hospital’s employees are not participants in a human trial. They are licensed doctors, nurses, medical technicians and staff members. The hospital has not applied to test the COVID-19 vaccines on its employees,” the order said.

The court added that the plaintiffs weren’t being coerced to take the vaccine.

“Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else,” said the ruling. ”Every employment includes limits on the worker’s behavior in exchange for remuneration. This is all part of the bargain.”

The court also dismissed a wrongful termination claim, explaining that Texas had an exception to at-will employment if a worker was asked to do something illegal—and taking a vaccine didn’t qualify.

The court rejected an argument that it was against public policy to make them take the shot.

In this case, Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas in Houston ruled that the plaintiffs’ wrongful termination claim was invalid.

The judge wrote that the plaintiffs misconstrued federal law when they argued that it was illegal for their employer to coerce them to take an “experimental vaccine.”

Jim Paretti Jr., a shareholder in Littler Mendelson’s workplace policy institute in Washington, D.C., said that the ruling by the U.S. District Court for the Southern District of Texas would give employers comfort that they can proceed with vaccine mandates, and stand on solid legal ground.

“I think it’s the first decision that we have seen, not the first case. There are half a dozen of these cases around the country,” Paretti said. “I think the district court judge did a very good job of going through the various arguments the plaintiffs made, and saying, ‘Nope, this doesn’t carry or meet the bar that you need.’ I hope and expect other federal courts looking at this will arrive at similar conclusions.”

There hasn’t been much legal precedent to guide employers, who have been threading the needle between employee well-being and safety and employee engagement during the pandemic, said Bonnie Puckett, a shareholder in Ogletree, Deakins, Nash, Smoak & Stewart in Atlanta.

Creating a mandate for safety is a bold step, Puckett said.

“Everyone knew, of course, somebody is going to get sued over policies like this. That is how the law gets made, and therefore, everybody is watching these litigations to see what and how the law will develop and evolve,” Puckett said. “It’s good to have some case law out there on the [emergency use authorization] issue. In general, the judge’s position [is] that [emergency-use authorization] and at-will employment doesn’t interfere with any right. It’s consistent with what the pre-COVID landscape had been.”

Michael Mitchell, a shareholder in Ogletree Deakins in Houston and Miami, wrote in an email that Hughes applied long-standing law governing at-will employment.

“A private employer can basically impose whatever rules and requirements on  their employees that the employer wants, as long as the employer is not asking the employees to break the law,” Mitchell said. “On perhaps a more common sense, if not practical level, the opinion recognizes the importance of healthcare workers being safe and healthy, in order to take care of others.”

Plaintiffs lawyer Jared Woodfill of the Woodfill Law Firm in Houston didn’t immediately respond to a call seeking comment.

Note: This story was corrected to reflect that the court rejected the plaintiffs’ arguments that their employer could not make them take emergency-use-authorization vaccines. The ruling means an employer may require workers to take vaccines that are approved for emergency use, rather than fully approved.

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