The Covid-19 Delta variant has put a big crimp in pandemic recovery, and driven many employers to require employees to get vaccinated. To the extent reasonably possible, employers must accommodate those who can’t be vaccinated for medical reasons, and those who won’t for religious reasons, but the bottom line may often come down to jab versus job. Is that legal?
The answer, pretty much, is yes, at least in most states. The Equal Employment Opportunity Commission (“EEOC”) issued a guidance document in May that supports an employer’s right to terminate, with disability and religious exceptions, and in one recent federal case, a court allowed termination of employees who refuse either a shot or reasonable alternatives. In another federal case, the court allowed a university to keep unvaccinated students from doing things live on campus. Though there are some devils in the details of these cases, they both support an employer’s right to mandate vaccinations or alternative safety measures.
A Texas Federal Court Allows a Mandate for Health Care Workers
In Bridges v. Houston Methodist Hospital, 117 employees sued to block a vaccination mandate and related terminations, but the court granted the hospital’s motion to dismiss. The plaintiffs argued that the currently available Covid vaccines are experimental and dangerous. The court found this claim was false, but also held it wasn’t relevant because “Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker.” The decision went on to reject the argument that mandatory injections violate public policy, again because it was contrary to Texas law, which does not recognize such an exception to at-will employment.
The Bridges court also noted the EEOC May guidance document. The plaintiffs’ federal law argument that vaccines can’t be mandated if they are not fully approved was then rejected, as was an argument that employees effectively were being forced to serve as human guinea pigs. The hospital was not conducting a trial of the drug, the court said. Rather, it was trying to “do [its] business of saving lives without giving [patients] the Covid-19 virus.”
An Indiana Federal Court Allows Requirement of Other Safety Measures for People with Disabilities or Religious Objections
Klaassen v. Indiana University presented several issues not at play in Bridges, though the end result also supports vaccination mandates. Because the university is a government entity, the court had to address Fourteenth Amendment constitutional questions that would not apply to a private hospital. Moreover, the issue at hand was narrowly limited to whether a preliminary injunction was warranted. The court ruled against the injunction because success at trial was unlikely, but its ruling did not necessarily end the case. It noted that under Indiana law “all public university students [must] be vaccinated for diphtheria, tetanus, measles, mumps, rubella, and meningococcal disease before attending school.” The clear implication was “why should Covid be any different?”
The specific claims of the eight student plaintiffs in Klaassen differed from the employee claims in Bridges. The students were not fighting termination, but rather the accommodation requirements the university imposed on the unvaccinated. All but one of the eight qualified for a religious or medical exemption from vaccination, and their complaints related to masking, testing, and social distancing requirements. The court recognized “the significant liberty interest the students retain to refuse unwanted medical treatment,” but went on to hold that “the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff.”
What’s Next on the Vaccination Mandate Front?
Where, then, do Bridges and Klaassen leave us? The first says termination is permissible, and the second says masking and other such accommodation measures for the unvaccinated are reasonable. Both cases, however, were decided, at least in part, based on state law, so it is not crystal clear how they might apply in other jurisdictions. Some states have at least considered banning mandatory workplace vaccination for Covid, and there are other cases now working their way through the system.
In early August, a law professor in Virginia filed suit against George Mason University because of its vaccination mandate. He argued, in part, that because he’d already had Covid-19 he was immune and should not have to get a shot. How will he and other opponents of vaccine mandates fare in court? Likely they won’t succeed, but the result is not certain. Schaefer Halleen will continue to monitor developments, and will report from time to time as courts decide more cases.
