As the COVID-19 vaccine roll-out continues across the US, healthcare employers are acutely aware of the benefits of having a fully-vaccinated workforce along with the challenges of dealing with unvaccinated workers. As Chilivis Grubman discussed last week, healthcare employers have recently received guidance from OSHA and the EEOC on handling the workforce in the pandemic. Still, federal agencies have not directly addressed a key question that many employers have asked: can an employer require vaccination and terminate employees that refuse the vaccine?
A recent case out of Texas, Bridges v. Houston Methodist Hospital, is the first federal case to address the issue and may shed some light on vaccine mandates.
On April 1, 2021, Houston Methodist Hospital adopted a policy that required employees to be vaccinated by June 7, 2021. The policy outlined that leadership would receive the vaccine first, followed by all remaining workers. Vaccination would be provided to the workforce at the hospital’s expense.
On May 28, 2021, Jennifer Bridges and 116 other Houston Methodist employees filed an action in state court alleging the hospital’s mandate would result in wrongful termination of employees who refuse to “perform an illegal act.” The employees also alleged that the hospital’s vaccine mandate is against public policy and asked the court to declare that the vaccine mandate is prohibited by federal law. The case was removed to federal court on June 1, 2021.
Judge Hughes dismissed the case on June 12, 2021. In a brief opinion, Judge Hughes states that the employees’ claim in the “press-release style of the complaint” that the COVID-19 vaccine is experimental or dangerous is false and irrelevant. Rather, Judge Hughes emphasizes that the issue in the case is whether the hospital’s termination of the employees for refusing to get the vaccine would result in a wrongful termination claim. On this point, the plaintiffs failed to specify what “illegal act” the hospital was requiring the employees to perform.
Judge Hughes also states that the hospital’s mandate is consistent with public policy and points to Jacobson v. Massachusetts, a 1905 Supreme Court Case that held, in part, that state-imposed requirements of mandatory vaccination do not violate due process.
Interestingly, Judge Hughes points to the EEOC’s statement on May 28, 2021, that employers may require employees to be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. Judge Hughes notes that the EEOC’s statement is not binding, but does highlight the EEOC’s position on the matter.
On the plaintiffs’ claims that the hospital’s vaccine mandate violated federal law, Judge Hughes notes that the cited federal laws were either misconstrued or inapplicable.
Employers may find the final paragraphs of Judge Hughes’ opinion particularly encouraging:
Although her claims fail as a matter of law, it is also necessary to clarify that Bridges has not been coerced. Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.
The employees filed a notice of appeal on June 14, 2021.
The attorneys at Chilivis Grubman represent clients of all types and sizes, including employers in the healthcare industry. If you are an employer and need assistance with compliance with federal regulatory guidelines on COVID-19, please contact us today.