Lessons from Texas—Vaccine Mandates in Hospital Systems

• June 18, 2021

• Shalyn Smith McKitt , Balch & Bingham LLP

On June 12, 2021, Judge Lynn Hughes of the Southern District of Texas dismissed a lawsuit challenging a hospital’s mandate that its employees receive the COVID-19 vaccine. Although the ruling in this case may seem like a clear victory for health systems on this issue, its more practical takeaway is a lesson on how to properly challenge vaccine requirements.

In Bridges v. Houston Methodist Hospital, 117 hospital employees refused to get the COVID-19 vaccine in violation of the hospital’s policy requiring employees to be vaccinated. The employees argued that the hospital was using staff as "human guinea pigs" to test the efficacy of the drug. Their complaint also claimed the hospital's policy violated the Nuremberg Code of 1947, which is the ethical medical standard that emerged in the wake of Nazi human experiments during the Holocaust. They further suggested that the vaccine was untested and unreliable, and a violation of the Texas wrongful termination statute.

Judge Hughes addressed each of these allegations in his order stating:

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 . . . Bridges can choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.[1]

The opinion also states that "[e]quating the injection requirement to medical experimentation in concentration camps is reprehensible . . .Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability and in many cases, death."[2]

COVID-19 has devastated the country, so it makes sense that health systems want to avoid continued outbreaks among their staffs. However, this case was not a nod to all health systems’ right to require employee vaccination. The court never had to address reasonable requests for accommodations, closely held religious beliefs, or exemptions for employees with major health concerns. Instead, the court was faced with allegations of human experimentation and wrongful termination. It is unclear how the court would have ruled if the employees brought claims referencing closely held religious beliefs or other reasonably supported requests for exemptions from hospital policies.

This is not a new issue. In 1905, the Supreme Court of the United States in Jacobson v. Massachusetts upheld the authority of states to enforce compulsory vaccination laws.[3] State laws requiring vaccinations for public school students have also been upheld over the years.[4] Even in the wake of COVID-19, individual states have required testing to visit from outside the state.[5] The Jacobson decision, however, has its limits. Before COVID-19, states created exemptions for vaccination mandates based on health issues, religious beliefs, and personal beliefs.[6]

This case is narrowly tailored to vaccination requirements set by employers that are particularly susceptible to issues related to COVID-19. If, for example, this case involved a technology company that employs people to work remotely from their homes, the court’s analysis likely would differ. Here, it is arguably important that hospital staff reach a certain inoculation rate to ensure the integrity of the hospital workforce. When an employer is mandating vaccines on a tele-workforce, it pushes the limits of Jacobson.

Health systems and hospitals should, therefore, take note. Consider crafting vaccine policies that recognize reasonable exemptions until the courts or state legislatures figure out this issue. Understand the specificities of local wrongful termination laws because they may substantially differ from that of Texas. These considerations will hopefully help prevent future litigation.

Shalyn S. McKitt is an Associate at Associate Balch & Bingham LLP. Shalyn is an experienced litigator with a diverse background representing clients in matters concerning health law, employment law, governmental affairs and administrative law, and regulatory matters. As a previous litigator for a state government and the federal government, Shalyn gained extensive courtroom experience with complex health care issues and a deep understanding for the intricacies of litigation in federal and state courts. Immediately prior to joining Balch, Shalyn worked in-house as Senior Legal Counsel for a health care technology company.

ARTICLE TAGS

• Coronavirus Pandemic Hub
• Labor and Employment