Along with disrupting all our lives for more than a year, the COVID-19 pandemic raised a number of thorny legal issues that will occupy the courts and keep attorneys employed well into the future.
I used this column to address many of them, including whether employers could require employees to be vaccinated. My answer, based on my interpretation of existing state and federal law and court precedents, was a qualified “Yes.”
A ruling handed down by Judge Lynn N. Hughes of the Federal District Court for Southern Texas — in what is believed to be the first decision rendered in a case involving a vaccination mandate — proves that my legal skills are as sharp as ever.
The lawsuit, Jennifer Bridges et al v. Houston Methodist Hospital, was filed by 117 employees who objected to the health care facility’s “be vaccinated or be terminated” policy. The plaintiffs argued that they were wrongfully terminated for refusing to be vaccinated, that the hospital was violating the Food, Drug, and Cosmetic Act, that they were being coerced into acting as “human guinea pigs,” and that the mandate was prohibited by the post-World War II Nuremberg Code because it amounted to the type of forced medical experimentation used by the Germans during the Holocaust.”
Judge Hughes dismissed the case and eviscerated the plaintiff’s arguments in a scathing five-page opinion. In rejecting the wrongful termination claim because Texas, like Ohio, is an at-will employment state he wrote:
“[Jennifer] 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.”
He dismissed the FDCA claim because the Act “…does not apply at all to private employers like the hospital in this case. It does not confer a private opportunity to sue…”
He scoffed at the contention the employees were being forced to serve as human guinea pigs stating that the hospital was requiring the injection of an approved vaccine, not engaging in human trials of it, and he called the invocation of the Nuremberg Act and comparisons to Nazi medical experimentation “reprehensible.”
Finally, Judge Hughes noted that on May 28, 2021, the Equal Employment Opportunity Commission declared that employers may require all employees who physically enter a workplace to be vaccinated as long as they provide, when necessary, reasonable accommodations under the Americans With Disabilities Act and/or Title VII of the Civil Rights Acts for those employees who, because of a disability, or a sincerely held religious belief cannot be injected with the COVID-19 vaccine unless providing the accommodations results in an undue hardship on the employer.
Although the plaintiffs in Bridges v. Houston Methodist have vowed to appeal, I believe Judge Hughes' well-reasoned ruling, the fact that Ohio, like Texas, is an at-will employment state, and the new guidance from the EEOC should ease the legal concerns of employers that have or are considering requiring their employees to be vaccinated.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.