Court Inoculates Hospital From Claims by Workers Fired for Not Getting COVID-19 Vaccine

In the first of what will likely be many cases addressing claims by employees fired for not obtaining a COVID-19 vaccination before returning to work, a federal district court in Texas upheld the employer’s vaccination requirement and termination of employees refusing to be vaccinated on less than firm grounds. Bridges v. Houston Methodist Hospital, 2021 U.S. Dist. LEXIS 110382 (S.D. Tex. June 12, 2021).

Background

On April 1, 2021, Houston Methodist Hospital (Hospital) announced a policy requiring employees be vaccinated against COVID-19 by June 7, 2021, starting with the leadership and then inoculating the remaining workers, all at its expense. Employees who refused to be vaccinated and did not qualify for an accommodation would be terminated.

Approximately 180 employees out of a workforce of about 25,000 did not obtain a vaccination or have an accommodation granted. The 180 employees were suspended for two weeks to allow them to get vaccinated or their employment would be terminated (27 of the suspended employees had one shot, and thus might complete the vaccination process during the two-week suspension).

The Hospital reported that 285 employees received a medical or religious exemption, and another 332 were granted deferrals for pregnancy and other reasons.

Court Ruling

A group of 117 employees, including first named plaintiff Jennifer Bridges sued to block their terminations and the requirement that they receive a COVID-19 vaccination. On the Hospital’s motion to dismiss the complaint, Judge Lynn Hughes (a Reagan appointee) ruled in favor of the Hospital and against the plaintiffs. Appearing somewhat dismissive of the employees’ claims, the court ruled that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. The court held: “Receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties.”

The plaintiffs also argued that the injection requirement violates public policy. The court noted that Texas does not recognize a public policy exception to at-will employment; even if it did, the injection requirement is consistent with public policy.

The court further noted that the EEOC issued guidance that employers can require employees be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. Although not included in the opinion, the Hospital did make accommodations for a number of employees, and the plaintiffs did not claim they were denied a reasonable accommodation.

The plaintiffs also argued that because the vaccines had not received full approval (but emergency use approval), it would be improper to force anyone to receive the vaccines. The court rejected this argument finding that private employers were not prohibited from requiring the COVID-19 vaccines; similarly, the court rejected the argument that requiring a person to take a drug approved for emergency use only constituted improper medical testing/experimentation.

Finally, the court explained:

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.

What’s Next

It is likely that the plaintiffs will appeal the ruling (and may seek an emergency hearing given that there is a short time period in which they would be terminated). It is worth noting that Judge Hughes is one of the most reversed Judges in the Fifth Circuit. The court’s reliance, in part, on the EEOC’s guidance provides some comfort for employers. Other courts will likely be dealing with similar lawsuits over the following months. While this case did not involve a request for a reasonable accommodation, there will no doubt be accommodation issues down the road, particularly if large numbers of employees ask for an accommodation to work from home (and an employer grants some while denying others).

On potential ground for appeal here is the court’s somewhat dismissive response to the current FDA emergency use status of the vaccines. However, the drug manufacturers are moving to obtain full use approval which may eliminate this argument. In the meantime, some states are attempting to preempt the issues in this case by proposing considering legislation that would prohibit discharging an employee for refusing to be vaccinated.

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