Can A Hospital Require Its Employees to Be Vaccinated Against COVID?

A number of hospitals and health systems have announced that their employees will be required to be vaccinated against COVID. Among the first to make this requirement was Houston Methodist, a large and well-respected health system in Houston, Texas. A group of employees facing loss of their jobs sued Houston Methodist making a number of claims as to why it was illegal for their employer to require vaccination. That case has now been decided. Before we go through the court’s analysis and decision, let’s frame up some of the issues.

The requirement for vaccinations is not new. Schools have long required certain immunizations for their students. Many readers of my age will remember getting our polio vaccine sugar cubes at school. Hospitals have long required new employees to show evidence of immunity to certain diseases such as hepatitis, measles, rubella and mumps or get vaccinated against these diseases. Most every hospital in the country requires their employees to receive an annual influenza vaccination. Of course, exceptions are made for those with medical contraindications or sincerely-held religious beliefs that would prohibit them from receiving the vaccines.

Conflict arises when an employer has a legitimate interest in desiring to protect its workforce and customers from health risks caused by a contagious disease and when individuals believe that exercise of their personal freedom not to be vaccinated will mean the loss of their employment.

Hospitals face additional pressures to require vaccination than most businesses. First of all, those infected with the contagious disease, in this case COVID, are more likely to seek services from a hospital than many other types of businesses. Whereas with other businesses, someone who is infected with the SARS-CoV-2 virus may be in and out of that business in minutes to hours, those requiring the services of a hospital are often hospitalized for days or weeks posing a more protracted risk to the hospital’s employees. In addition, unlike the services of most businesses, hospital services may require health care workers to be in very close contact with infected patients and cause through the performance of medical procedures a patient to cough or expel more virus than with normal breathing that would occur in most businesses.

Not only do infected persons create a special risk for health care workers, but health care workers can create special risks for certain patients. By the very nature of hospital services, patients often tend to be those that are at highest risk for infection and for worse outcomes from infection. This would include the elderly, those with multiple underlying medical conditions, and patients who are immunocompromised, including patients undergoing chemotherapy, patients preparing for or who have received bone marrow or solid organ transplants and newborns and infants.

In one recent poll, 79 percent of respondents indicated that they want health care workers to be vaccinated to ensure their own safety as potential future patients.

Hospitals obviously have an interest in ensuring that they keep employees safe and maintain sufficient staffing levels to care for patients. Many hospitals also offer their employees and their families self-funded health plan coverage and have an interest in keeping those health care costs down for everyone. It also is unclear at present what liability a hospital may have if a patient were infected by a staff member and suffered harm.

Now, let’s turn to the interest of the plaintiff employees and their claims and examine how the court addressed those claims.

The case was decided by Judge Lynn Hughes in the United States District Court for the Southern District of Texas and the judge entered his decision on June 12, 2021.

The first claim addressed by the court was that the plaintiffs were wrongfully terminated. It is important to note that Texas is an “at-will” employment state. The premise of plaintiffs’ claims regarding wrongful termination was that Houston Methodist was requiring employees to take an experimental vaccine that was dangerous, and because these plaintiffs would not do so, they either had been terminated or were facing termination. The judge concluded that both claims that the vaccine was experimental and that the vaccine is dangerous were false, and that, in any case, whether those claims were true or not, they were legally irrelevant.

The judge points out in his decision that Texas law (even though the case was heard and decided in federal court, the court was required to apply Texas law in deciding the case) only protects employees from being terminated for refusing to commit an act that would potentially impose criminal penalties on the worker. The judge set out the case that plaintiffs would have to prove in order to be protected under a claim of wrongful termination: (1) that plaintiffs wee required to commit an illegal act – one for which they could suffer criminal penalties, (2) plaintiffs refused to commit the illegal acts, (3) plaintiffs were terminated, and (4) that the only reason for termination was their refusal to commit the illegal act.

The judge quickly dismisses this cause of action because receiving a COVID vaccination is neither illegal nor exposes plaintiffs to any criminal penalties.

Next the judge addresses the plaintiffs’ assertions that Houston Methodist’s vaccination requirement violates public policy. The judge points out that Texas law does not recognize an exception to at-will employment for actions inconsistent with public policy, but goes further to state that even if it did, this vaccination requirement would not be contrary to public policy. Judge Hughes references Supreme Court precedent that neither involuntary quarantine for contagious diseases nor state-imposed requirements for mandatory vaccination violate an individual’s due process rights. Further, the Equal Employment Opportunity Commission (EEOC) issued guidance in May that employers can require employees to be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely-held religious beliefs, and Houston Methodist complied with this guidance.

Plaintiffs also alleged that Houston Methodist’s vaccination requirement violates federal law in that employees cannot be required to take “unapproved” medications, and none of the COVID vaccines have received full approval from the FDA. Judge Hughes pointed to federal law that does allow the Secretary of Health and Human Services to introduce into commerce medical products intended for use during a public health emergency. Further, the court pointed out that the federal law neither expands nor restricts the rights and responsibilities of private employers, in fact, the federal law in question does not apply to private employers. Further still, the federal law does not provide for a private cause of action against either the government or private employers.

Plaintiffs also allege that the vaccine requirement violates federal law that protect human subject in clinical trials. Plaintiffs assert that because the COVID vaccines are not fully approved, their use is experimental and thus, employees cannot be coerced into receiving the vaccines. However, Judge Hughes holds that the vaccines are not experimental, Houston Methodist is not conducting a clinical trial with its employees and therefore, this provision of federal law also does not apply.

Another claim made by plaintiffs was quite shocking. They alleged that Houston Methodist’s vaccination requirement violates the Nuremberg Code analogizing Houston Methodist’s actions to those of forced medical experimentation on Jews during the Holocaust. Judge Hughes rightly chastised plaintiffs for making such a reprehensible analogy and pointed out that private businesses are not subject to the Nuremberg Code.

Here is one of the most important excerpts from Judge Hughes’ opinion:

“Although (plaintiffs’) claims fail as a matter of law, it is also necessary to clarify that (plaintiffs have) not been coerced. (Plaintiffs say that they are) 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. (Plaintiffs) can freely choose to accept or refuse a COVID-19 vaccine; however, if (they refuse, they) will simply need to work somewhere else.”

Where do things go from here? The plaintiffs in this case could file an appeal, but most of the holdings in Judge Hughes’ opinion are well settled law, and it would seem unlikely to me that this decision would be overturned on appeal. I think this case likely settles the matter, at least for workers in Texas.

It is likely that there will be other lawsuits in other states and their states’ laws regarding wrongful termination may differ from Texas’ law to such an extent that would allow plaintiffs to prevail on this claim. However, many of us expect that the FDA may grant full approval to the currently available COVID vaccines in the U.S. over the summer or by early fall. If that happens during the pendency of these lawsuits, it will likely make some of the suits, or at least some of the causes of action, moot in that plaintiffs are likely to make similar arguments to those made in this Texas case that the fact that the vaccines are not fully approved should be a basis to prevent employers from requiring them. The result will be that many of these lawsuits will then be dismissed by the courts.