Vaccine Mandates Gain Momentum
Court decision, EEOC language greenlight hospital mandates
A federal judge in Texas dismissed a lawsuit filed against Houston Methodist Hospital for mandating the COVID-19 vaccine for healthcare workers as a condition of employment.
The plaintiffs are appealing the dismissal, but the action sends a shot across the bow to healthcare workers and others who plan to challenge mandated COVID-19 vaccination programs in hospitals.
The hospital policy called for all employees to be vaccinated by June 7. The lawsuit was filed a little more than a week before that deadline. (For more information, see the July 2021 issue of Hospital Employee Health.) Filed by 117 unvaccinated employees, the lawsuit claimed Houston Methodist is “forcing an employee to participate in an experimental vaccine trial as a condition for continued employment.”1
Arguing hospital employees were not allowed to refuse an experimental product, the suit compares the mandated immunization of American healthcare workers for COVID-19 to the medical experiments the Nazis conducted on unwilling volunteers. These atrocities led to the Nuremberg Code on Permissible Medical Experiments, which states “The voluntary consent of the human subject is absolutely essential,” the plaintiffs noted.
In dismissing the case, Lynn Hughes, a federal judge for the Southern District of Texas, demolished the experimental vaccine claim and took the plaintiffs to task for bringing up the Holocaust to support their argument.
“The hospital’s employees are not participants in a human trial,” the judge wrote. “The hospital has not applied to test the COVID-19 vaccines on its employees. The Nuremburg Code does not apply because Methodist is a private employee and not a government. Equating the injection requirements to medical experimentation in a concentration camp is reprehensible.”2
The ruling clarified that Texas law only protects employees from refusing to commit an act carrying criminal penalties to the worker. “Receiving COVID-19 vaccination is not an illegal act and it carries no criminal penalties,” the judge ruled. “[Plaintiffs are] are refusing to accept inoculation that in the hospital’s judgment will make it safer for their workers and the patients in Methodist’s care.”
EEOC Ruling Favors Mandates
Hughes also cited the recent position taken by the Equal Employment Opportunity Commission (EEOC), which said employers can require COVID-19 vaccination of employees with reasonable accommodations for exemptions and staying within existing antidiscrimination laws.
On May 28 — the same date the lawsuit was filed by employees of Houston Methodist for its COVID-19 vaccination mandate — the EEOC posted the opinion on its website.
“The federal Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.”3
Reasonable accommodations include allowing an appropriately exempted employee to wear a face mask, as has been done with flu vaccination in many facilities, the EEOC stated. Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
Employers that have instituted a vaccine requirement “may need to respond to allegations that the requirement has a disparate impact on — or disproportionately excludes — employees based on their race, color, religion, sex, or national origin under Title VII; or age under the Age Discrimination in Employment Act (40),” the EEOC stated.
Employers should keep in mind that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination. A mandate could negatively affect them.
“It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate nondiscriminatory reason,” the EEOC concluded.
With the EEOC statement and the court decision, it appears healthcare facilities will survive challenges to mandate COVID-19 vaccine, says Lawrence Gostin, JD, O’Neill Chair in Global Health Law at Georgetown University.
“I have little doubt that healthcare institutions can require COVID-19 vaccinations of all staff,” he says. “The fact that COVID vaccines are under an emergency use authorization does not matter. Hospitals still have the power to mandate vaccines as long as they provide appropriate — and narrow — exemptions for medical or religious purposes.”
Many states have proposed bans against vaccine mandates by employers. As of this report, none had been approved. Most have gained little traction in state legislatures.
“A state can enact a statute that prohibits hospitals or other businesses from mandating vaccines,” Gostin says. “It requires a statute and not just a governor’s executive order.”
- Jennifer Bridges, et al v Houston Methodist Hospital et al. Order on dismissal. June 12, 2021.
- Jennifer Bridges, et al. v The Methodist Hospital. District Court of Montgomery County, TX. May 28, 2021.
- Equal Employment Opportunity Commission. What you should know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws. Updated May 28, 2021.
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