Health care workplaces have led the way implementing COVID-19 vaccine mandates. For example, in June 2021, Maryland’s largest hospitals and health care systems announced that employees would be required to be vaccinated as a condition of employment.
In September 2021, President Joseph Biden, Jr. also announced a multipronged federal vaccination mandate, including one directed to approximately 17 million health care workers at Medicare- and Medicaid-certified facilities.
Several states, including Maryland, Maine and New York, have also required most health care workers to be vaccinated.
Given the politically charged nature of this issue, it is not surprising that vaccine mandates for health care employees have led to lawsuits across the country. Despite these challenges, most health care vaccine mandates have been upheld by federal courts. Two recent federal cases provide good examples of the arguments employees have made in their attempt to defeat the mandates as well as the judiciary’s generally skeptical response to these suits.
In June 2021, a Texas federal court issued the first reported decision examining a COVID-19 vaccine mandate in a health care setting. In Bridges v. Houston Methodist Hospital, 117 employees sued to block Houston Methodist Hospital’s requirement that its employees be vaccinated. The employees raised various claims based on federal, state and international law, all of which were rejected by the court.
In particular, the employees argued that the federal law governing the administration of drugs issued under an emergency use authorization (EUA) prohibited the hospital’s mandate. The court rejected this argument, finding that the law governing EUAs only requires the government to ensure that recipients understand the potential risks and benefits of the drug, and that it does not restrict the action of private employers.
The Texas court also noted that more than a century ago the U.S. Supreme Court decided, in Jacobson v. Massachusetts, that a compulsory smallpox vaccination law did not violate the 14th Amendment right to due process. The Jacobson decision, which held that the “common good” sometimes outweighs individual liberties, has been repeatedly cited by courts during the COVID-19 era to validate the imposition of mandated vaccine programs.
The Texas court also lambasted as “reprehensible,” the employees’ claim that the mandate violated the Nuremberg Code, a set of ethical research principles developed in response to the horrors of Nazi-era medical experiments during the Holocaust.
Summarizing the employees’ situation, the Texas court held that “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”
Although the employees have filed an appeal, they face an uphill battle as subsequent events have undercut some of their primary arguments.
First, on July 6, 2021, the U.S. Department of Justice issued a memorandum opinion that the federal Food, Drug and Cosmetic Act does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an EUA. Further, on August 23, 2021, the U.S. Food and Drug Administration gave full approval to the Pfizer COVID-19 vaccine, so it is now possible to obtain a vaccine not subject to EUA status.
In Beckerich v. St. Elizabeth Medical Center, a federal court in Kentucky denied the request of a group of health care workers to prohibit their hospital employer from enforcing its mandatory COVID-19 vaccination. The employees focused their attack on the hospital’s supposed failure to properly handle requests for religious exemptions from the vaccine mandate.
Title VII of the Civil Rights Act of 1964 may require an employer to provide a reasonable accommodation where being vaccinated would violate an employee’s sincerely held religious belief. Far from demonstrating their assertion that the hospital’s accommodation process was “corrupt,” the court found that the hospital had appropriately considered accommodation requests. In fact, many employees had received exemptions.
The court also rejected claims that the mandate violated the employees’ “right to bodily integrity” and rejected hyperbolic comparisons to cases involving inmates being forcibly injected with antipsychotic drugs, and the residents of Flint, Michigan, being exposed to lead-contaminated water.
Ultimately, the court found the employees’ position came down to elevating their individual liberties over the greater good. Rejecting that position, the court held, similarly to the Bridges court: “If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant — the right to seek other employment.”
COVID-19 vaccine mandates in the health care workplace have fared very well thus far in the courts. Nevertheless, employers should pay close attention to legal developments in this area.
Already, the attorneys general of at least 10 states have filed suits seeking to block various aspects of the federal mandates. Whether any of these suits will ultimately succeed and what impact, if any, the litigation will have on the enforcement of mandates in health care facilities, remains to be seen.
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Barry F. Rosen
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