Over 100 employees at Houston Methodist Hospital in Houston, Texas, filed a lawsuit against their employer challenging its vaccine mandate. Houston Methodist’s policy is that any employee that does not receive a COVID 19 vaccine by June 7, 2021 will be suspended and then terminated. Plaintiffs’ central argument is that an employer cannot force an employee to participate in an experimental vaccine trial as a condition for continued employment.
The plaintiff-employees walked out on June 7, 2021, reportedly holding signs like “Vaxx is Venom”. One of the lead plaintiffs, Jennifer Bridges, appears motivated to stop an alleged “domino effect” of “everyone” being forced to get things into their body that they do not want.
Is the Houston Methodist Case Interesting to the Employer Vaccine Mandate Question?
The Houston Methodist case is interesting in that it appears to be the first major lawsuit challenging what I consider full private employer mandate. Importantly, a full mandate is not actually full. All employers must understand when exceptions are required by federal law. It is quite settled that reasonable accommodation must be made for folks with a qualifying medical condition or a sincerely held religious belief. In general, private employers are required to provide reasonable accommodations (changes to the way things are normally done at work) to applicants and employees who need them for medical or religious reasons. Employers are exempted from this exception when accommodation cannot be had without undue hardship.
The EEOC’s recently-updated guidance generally supports employer vaccine mandates. The 117 employees participating in this lawsuit do not appear to advance any exemption based on a qualifying medical condition or a sincerely held religious belief. They argue it is illegal for Houston Methodist to force them to take this particular vaccine.
In short, Plaintiffs appear quite focused on the argument that their employer is forcing them to participate in an “experimental” vaccine trial, with the word “experimental” appearing in the lawsuit 77 times. They argue it is important that none of the COVID 19 vaccines have received final approval from the FDA, and all are only under emergency use authorization (EAU). They equate employer mandates to Nazi -era human experimentation, and allege they violate the Nuremberg Code.
Why Are the Employees Not Arguing Against the Constitutionality of an Employer Vaccine Mandate?
Plaintiffs do not appear to be directly addressing what I consider the more interesting question: “Does the US Constitution or federal law permit an employer from mandating its employees take this vaccine?” Or a similar question: “When does a private employer vaccine mandate violate the US Constitution?”
Plaintiffs argue Texas state law – not the US Constitution or any overarching federal law – prevents Houston Methodist from mandating that its employees take this vaccine. They do not appear to directly challenge federal precedent regarding employer vaccine mandates. It is entirely possible that Houston Methodist or the court may address the federal constitutional issues. However, Plaintiffs appear motivated to litigate whether the vaccines are safe and effective, using Texas state law as their sole basis for relief. Their state law claims are primarily rooted in wrongful discharge, arguing that Texas public policy exceptions to its employment-at-will doctrine provide relief.
Small Businesses and Employer Vaccine Mandates
Much has been written about big businesses, such as Houston Methodist, United Air, Delta Air, and various universities and schools. But what can (or should) a small business do? My experience thus far is that small employers are making a business decision based on individual preferences and are listening to their employees and clients. The small business owner may be ‘pro-vaccine’ and prefer that all of their employees take it but are afraid of legal implications of enforcement. They are often concerned that a vaccine mandate could cause them to lose employees. Employers with a large low-wage workforce are particularly concerned because of increasing worker shortages for low-wage positions. However, some are also fearful that unvaccinated employees may cost them clients, particularly when that employee is client-facing. Geography is also having a large impact, as feelings toward vaccines differ in urban, suburban, and rural settings.
I have seen few considering going the other direction, such as actively promoting that their client-facing staff is vaccinated. The EEOC guidance and examples from large private employers like Houston Methodist suggest it is possible, but legal challenges may come. It is certainly easier to do nothing regarding employee vaccines; but, motivated employers may enforce vaccine mandates on their employees as a condition of continued employment. If you want to do this, I recommend making sure it is done right. It is important to understand the exceptions, employer exemptions, and to stay ahead of changing law and public policy. I do not see a reason why accomplishing this would be any more challenging in Wisconsin.
Are you a small business owner considering mandating vaccines for your employees? If so, I would be happy to help and recommend consulting an attorney.
If you would like a copy of the lawsuit, Jennifer Bridges et. al. v. Houston Methodist, please send me an email or drop a comment.