Are Employer-Mandated Vaccinations Coming to an Office Near You?

Written by: Allison Averbuch, Esq.

In a speech on September 9, 2021, President Biden announced that his administration asked the Department of Labor to develop emergency rules requiring all employers with 100 or more employees to ensure their workforces are fully vaccinated against COVID-19 or show a negative test at least once a week. Some experts are questioning whether such rules would overstep DOL authority and lawsuits have been filed even though the rules have not yet been released. In the meantime, many employers are preemptively implementing vaccine mandates or testing protocols and preparing to fulfill their obligations under the forthcoming rules. With this latest wave of employer-mandated vaccination, many people are asking if their employer can actually make them get a COVID-19 vaccination. All signs point to yes, as illustrated in a case this summer out of the United States District Court for the Southern District of Texas, Bridges v. Houston Methodist Hospital.[1]

The Bridges Court’s reasoning illustrates why employer-mandated vaccinations are likely here to stay. On June 12, 2021, United States District Court Judge Lynn N. Hughes dismissed a lawsuit filed by employees of Houston Methodist Hospital challenging the hospital’s mandate that all employees receive the COVID-19 vaccine. The dismissal was one of the first court rulings on private employers’ rights to mandate COVID-19 vaccinations. The Court rejected the plaintiffs’ argument that the mandate required employees “to serve as human guinea pigs” to increase hospital profits. The dismissal lays the groundwork for other courts to uphold employer-mandated vaccinations and will give teeth to existing EEOC guidance. It may also support forthcoming DOL rules on employer-mandated COVID-19 vaccination policies.

The Bridges plaintiffs’ complaint claimed that Houston Methodist was forcing the plaintiffs to choose between getting injected with a “gene modification injection” or getting fired. The plaintiffs also alleged that Houston Methodist’s compulsory vaccine policy violates the Nuremberg Code’s[2] mandate against experimentation on human subjects. The Court condemned the plaintiffs’ comparison of “the threat of termination in this case to forced medical experimentation during the Holocaust,” saying that “[e]quating the injection requirement to medical experimentation in concentration camps is reprehensible.”

The Bridges Court held that the plaintiffs’ claims could not survive on a wrongful-termination or a public-policy theory. In Texas, like in most states, employment is at will unless agreed otherwise. “At will” employment means that the employment relationship may be terminated at any time by either party, as long as the reason for termination is not unlawful. The only public-policy reason that Texas recognizes as an exception to its at-will employment rule is when an employee refuses to perform an illegal act requested by the employer. But the plaintiffs did not allege they were asked to perform any such criminal acts. From a public-policy perspective, the Court held that the plaintiffs’ case did not have a leg to stand on, citing a long history of previous public-health outbreaks in which the Supreme Court of the United States approved of state-mandated vaccinations or involuntary quarantine to prevent the spread of infectious diseases.

The Court affirmed Houston Methodist’s choice to “do their business of saving lives without giving them the COVID-19 virus.” According to the Court, the hospital’s choice was “made to keep staff, patients, and their families safer,” and if the plaintiffs make their free choice to refuse COVID-19 vaccination, they “will simply need to work somewhere else.” The Court treated an employer’s choice to require COVID-19 vaccination like any other commonplace work requirement: “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.” In other words, just like any other workplace requirement, if an employee does not want to get vaccinated against COVID-19, according to the Court, the employee’s recourse is to simply find a job elsewhere.

If an employer decides to preemptively implement a vaccination requirement, the EEOC has issued guidance to help employers ensure their policies do not run afoul of any anti-discrimination laws. According to the EEOC’s May 28, 2021 press release, “[f]ederal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.” Given the fraught political climate surrounding mandatory vaccinations, many employers are opting to encourage or incentivize employee inoculation instead. The EEOC’s press release says that federal discrimination laws also do not prevent employer incentives for vaccination or providing its employees with educational materials related to the COVID-19 vaccine. When designing employee incentives, however, the EEOC warns that incentives should not be so substantial as to be coercive.

When implementing COVID-19 vaccine policies, employers should ensure uniform enforcement to mitigate the risk of discrimination claims. If employers choose to enact mandatory vaccination policies, EEOC guidance also says that, as a best practice, employers should notify all employees that the employer will consider requests for reasonable accommodation based on disability, pregnancy, or religion on an individualized basis in connection with the policy. Given the risk for discrimination lawsuits, employers should take requests for reasonable accommodations relating to mandatory vaccination policies seriously and should engage with employees to attempt to find a reasonable accommodation that works for all involved, such as telework or reassignment to a different role.

[1] Bridges v. Houston Methodist Hosp., No. CV H-21-1774, 2021 WL 2399994 (S.D. Tex. June 12, 2021) (notice of appeal filed June 14, 2021).

[2] The Nuremberg Code is arguably the most important document in the field of medical ethics and arose out of Nazi Germany’s gruesome medical experimentation on unwilling victims who were prisoners in its concentration camps. See New England Journal of Medicine, FIFTY YEARS LATER: THE SIGNIFICANCE OF THE NUREMBERG CODE, Evelnye S. Huster, PhD.