Government Contracting

Since vaccines have become readily available, employers have been grappling with whether they should mandate vaccines for employees. Most companies have chosen to “strongly encourage” employees instead of mandating, and many companies have even provided incentives such as gift cards or additional benefits as one way to encourage vaccinations.

Earlier this year, one Texas employer, Houston Methodist Hospital, however, established a mandatory vaccination policy. In opposition to the mandatory policy, over one hundred employees of the hospital sued, alleging that the policy amounted to coercion and forced termination in violation of public policy and that the vaccination policy was invalid because it violated federal law. On June 12, 2021, U.S. District Judge Lynn N. Hughes of the United States District Court for the Southern District of Texas ruled in favor of the hospital and upheld the mandatory vaccination policy, granting the hospital’s motion to dismiss the complaint.

Judge Hughes reasoned that under Texas law, an employee can state a claim for wrongful termination only for refusing to commit a criminal act. Rejecting the plaintiffs’ arguments, the court explained: “Receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties.” The court even went a step farther by describing the hospital’s policy as “consistent with public policy.” The court relied somewhat on the fact that the employer was a health care provider, specifically writing, “[the hospital] 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.”

The court also found that the policy did not violate federal law. Plaintiffs alleged that because the vaccine had only received Emergency Use Authorization (“EUA”), private employers cannot mandate that employees receive the vaccine because the EUA requires that the Secretary of Health and Human Services “ensure that product recipients understand the ‘potential benefits and risks of use’ and ‘the option to accept or refuse administration of the product.’” Judge Hughes explained that the plaintiffs misconstrued the EUA provision, and private employers did not have to allow employees the option to refuse the vaccine. Judge Lynn reasoned that there was no coercion because an employee who did not want to be vaccinated could simply choose to work elsewhere. Judge Lynn likened the vaccine requirement to other work rules relating to attendance and assignments that are “part of the bargain” when an employee accepts employment.

While this decision is certainly a victory for the promotion of the vaccine, employers should keep in mind that variances between state laws may lead to different outcomes. The Texas standard for a wrongful termination is much narrower than it is in many other states. There is also no guarantee that the Texas decision will be followed by other courts or applied to industries outside of health care where the employer may have a greater argument for requiring vaccinations. All the same, the Texas court’s decision may give confidence to employers considering mandating vaccination policies. We strongly recommend that any employer considering implementing a mandatory vaccine policy consult with legal counsel.

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