Can private employers enforce mandatory COVID-19 vaccines as a condition of employment?

In December 2020, the EEOC said “yes,” subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs.  

Yesterday, Southern District of Texas Judge Lynn Hughes agreed, dismissing plaintiffs’ lawsuit against Houston Methodist Hospital based on the hospital’s policy requiring mandatory COVID-19 vaccinations for its employees by June 7, 2021.  

What is interesting about the Court’s opinion is the approach to the issue.  

First, the Court refused to consider vaccine safety and efficacy in adjudicating the issue, stating they were “irrelevant.”

Second, and reaffirming Texas’s strong public policy related to employment at-will, the Court found that the plaintiffs did not meet the Sabine Pilot exception to at-will employment, which protects employees from being terminated for refusing to commit an illegal act carrying criminal penalties for them.

Third, the Court expressly rejected the argument that the vaccination mandate violates public policy, finding that “the injection requirement is consistent with public policy.”

Fourth, the Court rejected the arguments that the injection requirement violates federal law.  More specifically, plaintiffs argued that no one can be mandated to receive “unapproved” medicines in emergencies (because the vaccines have not yet received full approval by the FDA), and that the injection requirement forces employees to participate in human trials.  Regarding these arguments, the Court found that the provisions on which the plaintiffs relied did not apply to private employers, and that the hospital’s employees were not participants in a human trial.

Finally, Judge Hughes was not amused by plaintiffs’ argument that the injection requirement violated the Nuremberg Code, writing “The Nuremberg Code does not apply because Methodist is a private employer…[e]quating the injection requirement to medical experimentation in concentration camps is reprehensible.”

Concluding the order, and importantly for employers, the Court confirmed the plaintiffs were not being “coerced” by choosing between the vaccination and termination, finding, “[i]f 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.”