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Coronavirus Litigation: Can Employers Require Employee Vaccinations?

The plaintiffs in one of the nation's first court cases over employer-required COVID vaccinations are among the heroes of the pandemic—nurses fighting to remain unvaccinated. Houston Methodist Hospital suspended unvaccinated employees on June 6.
June 10, 2021, 11am PDT | Irvin Dawid
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Ringo Chiu

"High levels of vaccination coverage are the way out of this pandemic,” said Dr. Michael Ryan, emergencies chief at the World Health Organization, reported the Associated Presson on June 7. Ryan estimated that the coverage needed to be 80% to prevent "imported," variant-driven infections that are responsible for the surge underway in the U.K.

U.S. President Joe Biden set a goal on May 17 for 70% of American adults to be at least partially vaccinated by Independence Day. On June 9, 63.9% of adults have received at least one shot, according to the Centers for Disease Control and Prevention. The 7-day moving average of total doses administered on June 4 was 823,000, down 72% from 3.25 million on April 3, according to the CDC.

Fourteen states have reached Biden's goal, with about 12 more set to join them by July 4, according to the Associated Press, leaving a shortfall of 24 states.

Ongoing polling by the Kaiser Family Foundation shows that a small percentage of Americans would get vaccinated "only if required." It's as high as 14% for the 18-29-year-old group and 10% for Blacks and Hispanics.

Test case for mandated vaccinations

Employer-mandated vaccinations would be significant for these three demographics. So far, most employers are offering incentives for workers to be vaccinated rather than mandating them. Houston Methodist, a hospital system that comprises an academic medical center in the Texas Medical Center and six community hospitals serving the Greater Houston area, is the exception to the rule.

"Houston Methodist became the first major health care system in the US to mandate Covid-19 vaccinations on March 31, starting with managers, according to an initial announcement from Houston Methodist CEO Marc Boom," reports Carma Hassan for CNN on June 8.

"As of today, we are nearly 100% compliant with our COVID-19 vaccine mandate with 24,947 of us being fully vaccinated. Houston Methodist is officially the first hospital system in the country to achieve this goal for the benefit of its patients," Boom said in the statement.

"A little less than 200 individuals right now are suspended, and we hope they get their vaccine over the next two weeks, but if they don't, they will be finding work elsewhere," Boom told CNN's Wolf Blitzer on Tuesday.

Nurses fight back

Hospital workers resisting the mandate and their supporters led a protest on Monday. Jennifer Bridges, a nurse who is helping to lead the resistance, told ABC13 she does not want to take the COVID-19 vaccine because it does not have full approval from the U.S. Food and Drug Administration.

"We're all suspended right now," said Bridges. "We're supposed to meet with a federal judge this week so he can choose to let us go back to work."

Bridges and 116 of her co-workers sued Houston Methodist on May 31, challenging the hospital’s vaccine mandate. According to Husch Blackwell LLP, it is the first such lawsuit against a private employer. In the 56-page petition [pdf], which bears Bridges' name, the plaintiffs "liken the vaccine policy to medical experiments in Nazi Germany concentration camps and claims that this is a violation of the Nuremberg Code."

The case will be heard in state court at the District Court of Montgomery County, Texas, just north of Harris County (Houston).

Can Employers Require Employee Vaccinations?

"It does not appear that the federal statute expressly prohibits a private employer from requiring vaccination as a condition of employment," write Jenna BrofskyNatalie Holden and Lowell Pearson of Husch Blackwell LLP on June 4 (source article).

Further, the federal agency tasked with enforcing federal antidiscrimination law, the Equal Employment Opportunity Commission, has clarified that employers can require COVID-19 vaccinations for their employees on the same day this suit was filed.  

As more employers begin to mandate vaccination, particularly in the healthcare industry, this lawsuit will be one to watch.

The authors note that similar lawsuits have been filed against public employers, including the nation's first against the manager of Doña Ana County, New Mexico, for requiring employees of the county detention center to be vaccinated. The case [pdf] will be heard by the U.S. District Court of New Mexico. More information on the case is available from the nonprofit group, New Mexico Stands Up!, representing the plaintiff.

Additional information on the Houston Methodist litigation can be found in The Washington Post and The New York Times.

Conflict with state "anti-passport" laws?

"On Monday, Gov. Greg Abbott of Texas signed a law prohibiting businesses or government entities in the state from requiring vaccine passports, or digital proof of vaccination, joining states such as Florida and Arkansas," report Jesus Jiménez and Niraj Chokshi for the Times. "It’s unclear how or if the new law will affect employer mandates like Houston Methodist’s."

Related in Planetizen:

Hat tip to CBS This Morning.

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Published on Friday, June 4, 2021 in JD Supra
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