This article about a Texas Federal District Court that rejected a challenge to a hospital COVID vaccine mandate was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
On June 12, 2021 (yes, a Saturday), a Texas federal district judge dismissed a lawsuit brought by employees of the Houston Methodist Hospital against the hospital’s COVID vaccine mandate which required employees to be vaccinated unless they qualify for a medical or religious exemption.
I wrote about the lawsuit here. It is a badly argued lawsuit, with multiple extreme claims, and it does a bad job in setting out the one somewhat plausible argument it has, the argument that you cannot mandate a vaccine under an Emergency Use Authorization (EUA).
Texas hospital COVID vaccine mandate decision
The lawsuit against the Texas Methodist Hospital hospital COVID vaccine employee mandate was initially brought in state court but then transferred to federal court, where it was heard by Judge Lynn Hughes, originally appointed by President Reagan. On June 7, as mentioned in the post’s update, Judge Hughes rejected the plaintiffs’ request for a temporary restraining order in pretty strong terms.
The decision to dismiss the suit was also strong. Judge Hughes opened by correctly describing the claim in the complaint as a claim that the hospital is “unlawfully forcing its employees to be injected with one of the currently available vaccines or be fired”.
He then points out that the wrongful termination claim plaintiffs are relying on does not hold. To remind readers, employment in the United States is usually at will – an employer can dismiss an employee for any reason.
Plaintiffs tried to rely on an exception in Texas law, the Sabine Pilot exception, which prohibits an employer from dismissing an employee for refusing to do an illegal act. As I said in my previous post regarding this claim, “This is a strange claim here. It is not illegal to get a COVID-19 vaccine. The mandate did not require plaintiffs to commit an illegal act. It seems a very bad fit.”
Judge Hughes ruled exactly that. He pointed out that:
To succeed on a wrongful termination claim, Bridges must show that (a) she was required to commit an illegal act – one carrying criminal penalties, (b) she refused to engage in the illegality, (c) she was discharged, and (d) the only reason for the discharge was the refusal to commit an unlawful act. [footnote omitted]
Bridges does not specify what illegal act she has refused to perform, but in the press-release style of the complaint, she says that she refuses to be a ‘human guinea pig.’ Receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties. She is refusing to accept inoculation that, in the hospital’s judgment, will make it safer for their workers and the patients in Methodist’s care.
Plaintiffs also argued that a vaccine mandate violates public policy. Judge Hughes pointed out that Texas does not recognize public policy as an exception to at-will employment – an employer can fire an employee even for reasons that don’t fit public policy. He also pointed out that a vaccine mandate is consistent with public policy, pointing to Supreme Court jurisprudence upholding quarantine and vaccine mandates, and to the Equal Employment Opportunity Commission guidance that strongly suggests that employers can require covid-19 vaccines as long as they provide accommodations required.
The Judge also addressed the claim that a workplace COVID-19 vaccine mandate is invalid because federal law prohibits mandating a EUA vaccine. As I said in my post about the lawsuit, this is the one claim in the lawsuit that is plausible, because there is legal uncertainty – and no cases until this one – on whether you can mandate a EUA vaccine.
The opponents’ best argument on this relies on a provision that instructs the Secretary of Health and Human Services to notify recipients of “the options to accept or refuse administration of the product”. Opponents say that this provision means everyone has the choice to accept or refuse the vaccine, so no mandates.
The judge rejected this claim. He said the plaintiffs have “misconstrued this provision. It confers certain powers and responsibilities to the Secretary of Health and Human Services in an emergency. It neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers like the hospital in this case. It does not confer a private opportunity to sue the government, employer, or worker.” This echo points my co-authors and I have made before.
The Judge also rejected the plaintiff’s claim that the mandate requires employees to participate in a human trial and violates a federal law protecting human subjects, by pointing out that the “hospital’s employees are not participants in a human trial. They are licensed doctors, nurses, medical technicians, and staff members.
The hospital has not applied to test the COVID-19 vaccines on its employees, it has not been approved by an institutional board, and it has not been certified to proceed with clinical trials.” Basically, the judge points out that the employer mandate is not, in fact, a clinical trial.
The Judge also rejected the plaintiffs’ claims of violation of the Nuremberg Code, because the hospital is a private employer, not the government. I think this is the one place where the judge’s decision is not sufficiently well reasoned. He should have rejected the Nuremberg Code arguments for the reason he mentioned earlier – that this is not a medical experimental or a clinical trial, and the fact that as he said next, plaintiffs are not coerced. The private status is not the determinative point.
Judge Hughes next pointed out that the plaintiffs were not coerced. He said:
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.
Exactly. Employees can refuse work rules, but they may lose their job as a consequence. What they cannot do is force the employer to let them continue to work in violation of a legitimate rule.
What next?
The plaintiffs may appeal, and the appeal will be heard by the Fifth Circuit, one of the more conservative circuits in the country. But this is a strong, well-reasoned decision that reflects long-standing principles, coming out of a not-well-argued complaint. The one area of uncertainty, an area that needs clarity, is the effect of the EUA law – and Judge Hughes made a strong case there that it does not bind private employers.
We will see where this goes, but this may well encourage employers who have been considering a mandate throughout the country.
Update 15 June 2022 — court supports the hospital
As a reminder, employees sued claiming the hospital cannot mandate an “experimental” vaccine, pointing to the Emergency Use Authorization (EUA) law provisions. A district court found that a private employer can mandate a EUA vaccine.
The Fifth Circuit Court of Appeals found that there is no violation of the at-will firing provisions, and said that the federal law likely doesn’t support them, but without real analysis of the EUA provision. Here is the operational paragraph:
However, we agree with the district court that plaintiffs’ alleged violations of federal law are insufficient to show any violation of public policy for purposes of an at-will-employment exception. Indeed, plaintiffs hardly protest on appeal. Instead of reasserting their reliance on alleged violations of federal law and regulations, plaintiffs have pivoted to alleged violations of Texas law and executive orders, and now even equivocate on whether federal lawsupportstheirclaim.4 Federal law does not, and the district court did not err in dismissing plaintiffs’ claim.”
The hospital did offer a religious and medical exemption, and the employees were not claiming those, so the question of the application of religious freedom did not arise in this case.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
