Wednesday, June 2, 2021

Coronavirus Update 6-2-2021: 117 employees are about to learn what it feels like to lose a lawsuit in spectacular fashion

117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine. 

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is "illegally requiring its employees to be injected with an experimental vaccine as a condition of employment." The lawsuit adds that the hospital's vaccine requirement violates the "Nuremberg Code and the public policy of the state of Texas."

In a statement, hospital CEO Dr. Marc Boom said, "It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental."

Dr. Boom is 100 percent correct; the hospital's policy is legal. Here's why, and why this lawsuit will fail spectacularly.

1/ The EEOC expressly says that mandatory vaccine policies are 100% legal (as long as an employer makes allowances to accommodate employees whose underlying disabilities, sincerely held religious beliefs, practices, or observances, or pregnancy prevents them from getting vaccinated). Because I've seen zero references that any of the 117 plaintiffs are claiming an ADA or Title VII violation, I conclude that the hospital has met its legal obligations in this regard. (Note, however, that Texas is considering pending legislation that would make "COVID-19 vaccination status" a protected class under its employment discrimination law.) 

2/ Public policy actually favors as many individuals getting vaccinated as possible. Just ask the Biden White House, the CDC, the EEOC, OSHA, just about any other government agency, and even the State of Texas (although its governor did sign an Executive Order prohibiting government entities from compelling that anyone receives a COVID-19 vaccine administered under an emergency use authorization). Note also that there are efforts underway in states across the country (e.g., Ohio) to prohibit a business from mandating vaccines or permitting individuals to decline a required vaccine based on medical contraindications, natural immunity, or reasons of conscience.

3/ The Nuremberg Code is not a thing, at least not in this context. In fact, there's been a lot of chatting lately about the Nuremberg Code as a justification to refuse vaccine mandates. It's wrong and it's offensive. It's a set of research ethics principles for human experimentation created as a result of the Nuremberg trials at the end of WWII. It was a reaction to the medical atrocities committed by Dr. Josef Mengele and other Nazis during the war, with the intent of protecting people from suffering similar atrocities. To compare Nazi war crimes to a life-saving vaccine that has been tested and vetted is the height of disgusting selfishness.

Bottom line: If you want to mandate that your employees get vaccinated as a condition of employment, you are legally in the clear to do so, subject to reasonable accommodation exceptions under the ADA for disabled employees, and under Title VII for employees' sincerely held religious beliefs, practices, or observances, and for pregnant employees. Any other gripes, complaints, or objections by employees are just smokescreens that you can legally ignore, at least for now.

Photo by Stephen Radford on Unsplash