The Jab or my Job? COVID-19 Vaccine Mandates in Healthcare

Kansas City office of Husch Blackwell. Husch Blackwell represents a full spectrum of healthcare providers and other businesses in regulatory compliance and litigation matters. The information contained in this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are encouraged to consult their own attorney concerning their specific situation and specific legal questions

Source: The Texan

As of November 8, 2021, approximately 224 million people in America—67.5% of the total U.S. population—were fully vaccinated against COVID-19. 1 On the same date, COVID-19 cases totaled 46,405,253, and U.S. deaths exceeded 752,000. 2 As the number of cases, hospitalizations, and deaths continue to rise, so do the number of hospitals, health systems, and other healthcare institutions across the country mandating vaccination for employees. 3 Recent developments at both the state and national levels are impacting who must be vaccinated and by when.

This article examines the COVID-19 vaccine mandate that kick-started the industry trend, the novel employment litigation that resulted, and where Missouri healthcare workers and institutions stand with regard to the ongoing vaccine mandate debate.

Houston Methodist

In April of 2021, Houston Methodist, a seven-hospital system (System), became the nation’s first hospital system to require all employees to get vaccinated against COVID-19. 4 Shortly thereafter, the System expanded the requirement to mandate vaccination for all employees and all medical staff with clinical privileges at any of the seven locations, including physicians, nurse practitioners, physician’s assistants, and others. 5 Under the mandate, all 26,000 employees and medical staff were required to submit proof of full vaccination on or before June 7, 2021 or, alternatively, submit all required documentation for a medical or religious exemption by May 3, 2021. 6 The requirement sparked protest among some members of the System’s staff and others in the communities where the System operates. To voice their objections to the requirement, many stood outside Houston Methodist locations talking with the media and holding picket signs with phrases such as “vaccinate or terminate” and “the jab or my job.”

On June 7, pursuant to the System’s vaccination policy, 178 Houston Methodist employees received two-week suspensions, without pay, for noncompliance. Twenty-five of those employees obtained vaccinations during the suspension period, thereby meeting the requirement. Therefore, those 25 employees were permitted to return to work. The remaining 153 suspended employees were ultimately terminated or voluntarily resigned in opposition to the requirement. 7 Of those, 117 employees, led by Registered Nurse Jennifer Bridges, brought suit against the System in late May. 8 The suit alleges that, because the currently available COVID-19 vaccinations are “experimental” and “dangerous,” Houston Methodist’s vaccine policy is violative of public policy and federal law. The plaintiffs further claim that firing employees for refusing vaccination constitutes wrongful termination.

Approximately two weeks after the case was filed, Judge Lynn N. Hughes of the U.S. District Court for the Southern District of Texas granted the System’s motion to dismiss, upholding Houston Methodist’s vaccination policy. The opinion wholly rejected the plaintiffs’ claims, stating that “Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker,” and that “[r]eceiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties.” In addition, the opinion cited recent Equal Employment Opportunity Commission guidance stating that employers can require employees to be vaccinated against COVID-19, provided there are reasonable accommodations for those with disabilities, legitimate medical conditions, or sincerely held religious beliefs precluding vaccination. 9

The opinion concluded by noting that not only did the plaintiffs’ claims fail as a matter of law, but that the plaintiffs had also not sufficiently demonstrated that they had been coerced. In the words of Judge Hughes:

“Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. . . . Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. If 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.”

The plaintiffs are currently appealing to the U.S. Court of Appeals for the Fifth Circuit. 10 On August 16, 2021, however, 62 former Houston Methodist employees brought another lawsuit against the System, this time formally alleging wrongful termination. 11 In response, System officials have called the suit “frivolous” and noted, “Since we issued that mandate, more than 1,500 hospitals throughout the country have mandated the COVID-19 vaccine for employees. In fact, only Houston Methodist and one other hospital system in the U.S. are fully vaccinated during the Delta surge that is filling our hospital beds.” 12

Indeed, the System’s vaccine mandate, as well as its success in the initial lawsuit, has prompted other healthcare institutions across the U.S. to implement similar policies. 13 Moreover, the opinion now serves as persuasive authority on the novel topic of COVID-19 vaccine mandates, giving courts across the nation a roadmap with which to respond to the imminent wave of lawsuits challenging employer-mandated vaccinations, at least where private employers in the healthcare setting are concerned. 14 For example, on September 24, 2021, Judge David L. Bunning of the U.S. District Court for the Eastern District of Kentucky declined to grant a preliminary injunction to 40 workers who brought constitutional claims against St. Elizabeth Healthcare, a private health system with over 11,000 employees, based on its COVID-19 vaccine mandate. 15

Judge Bunning, like Judge Hughes, noted that employees who do not want to follow rules set by their employers are free to find work elsewhere:

“To work at St. Elizabeth, Plaintiffs agree to wear a certain uniform, to arrive at work at a certain time, to leave work at a certain time, to park their vehicle in a certain spot, to sit at a certain desk and to work on certain tasks. They also agree to receive an influenza vaccine, which Defendants have required of their employees for the past five years. . . . 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.” 16

One notable difference between the Houston Methodist and St. Elizabeth lawsuits is that on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 Vaccine. 17 Prior to that, all three COVID-19 vaccinations on the market had only Emergency Use Authorization. Therefore, the 40 Plaintiffs in St. Elizabeth had a far less plausible argument that requiring vaccination was effectively human experimentation than did the 117 Plaintiffs in Houston Methodist.

As of mid-October, employees and advocacy groups had filed almost 40 federal cases challenging employer- or government-mandated vaccination requirements. A handful of those cases ended in dismissal, and the courts in several of the other cases that are still pending have denied plaintiffs’ requests for temporary restraining orders. 18 These results suggest that workplace COVID-19 vaccine mandates will, in the end, stand up to scrutiny outside of just Texas and Kentucky.

Vaccine Rates and Preferences in Healthcare

According to the COVID States Project, a multi-university research collaboration funded in part by grants from the National Science Foundation, healthcare workers are “settling into two extremes:” already vaccinated or explicit refusal to be vaccinated. 19 A national study conducted by the American Medical Association in June of this year indicated that over 96% of practicing physicians were, at that time, fully vaccinated. 20 As of July, however, 27% of all healthcare workers were still unvaccinated. 21 Research indicates that of those, 15% are vaccine resistant, meaning that unless their employers impose mandates, they will likely remain unvaccinated. 22

Those in support of mandatory vaccination have pointed out that requiring healthcare workers to be vaccinated against various infectious diseases is a longstanding practice, and, therefore, requiring the COVID-19 vaccination is merely an extension of existing policy. 23 Although requirements differ between states and institutions, healthcare workers have routinely been required to obtain vaccination against communicable diseases such as influenza, hepatitis B, measles, mumps, rubella, varicella (chickenpox), and more as a condition of employment. 24

On July 26, 2021, a group of more than 50 health care professional societies and organizations, including the American Hospital Association, 25 the American Medical Association, 26 the American College of Physicians, 27 the American Academy of Family Physicians, 28 and the American Public Health Association, 29 joined together to issue a joint statement “in support of COVID-19 vaccine mandates for all workers in health and long-term care.” The statement, in pertinent part, is as follows:

“Due to the recent COVID-19 surge and the availability of safe and effective vaccines, our health care organizations and societies advocate that all health care and long-term care employers require their workers to receive the COVID-19 vaccine. . . . [A]ll health care workers should get vaccinated for their own health, and to protect their colleagues, families, residents of long-term care facilities and patients. . . . We call for all health care and long-term care employers to require their employees to be vaccinated against COVID-19.”

The day the joint statement was released, the U.S. Department of Veterans Affairs announced that all employees and staff at VA facilities had a period of eight weeks from the date of the announcement to become fully vaccinated. 30

As of late July, almost 30 more organizations had signed on as proponents of the joint statement, bringing the list of total proponents to 88. 31 Another joint statement, released November 4 and attributed to the American Hospital Association, American Medical Association, and American Nurses Association, referenced the “devastating milestone” of 750,000 U.S. COVID-19 deaths and urged “everyone who is eligible to get vaccinated as soon as possible to protect themselves and their loved ones from this disease.” 32

Missouri Mandates

Presently, Missouri has not passed any legislation that would either mandate COVID-19 vaccination or ban COVID-19 vaccine mandates. As of early October, 23 states have passed legislation that mandates that healthcare workers vaccinate or, as an alternative in some states, undergo regular testing. Six states have outright banned vaccine mandates, and four states have imposed bans but specifically exempted healthcare organizations from those bans. 33

On September 9, 2021, the Biden-Harris administration announced 34 a COVID-19 Action Plan requiring sweeping vaccine mandates for federal workers and contractors, employers with one-hundred or more employees, and healthcare settings that receive Medicare or Medicaid reimbursement (including nursing homes). 35 On November 4, the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation giving an estimated 17-million healthcare workers in Medicare and Medicaid certified facilities across the nation two months to be fully vaccinated against COVID-19. 36 2019 CMS data indicate that there are just over 7,550 Medicare certified institutional providers in the state of Missouri, including 140 hospitals, 510 skilled nursing facilities, and thousands of home health agencies, hospices, health clinics, labs, and other healthcare institutions. 37

Several Missouri hospitals and health systems instituted mandates prior to President Biden’s announcement. Notable healthcare entities in the state of Missouri mandating vaccination are included in Table 1 . Additionally, the table lists the date each vaccine mandate was announced, as well as the date by which all employees are required to be fully vaccinated against COVID-19 per each entity’s respective policy.

Table 1

Healthcare entities in the state of Missouri mandating vaccination

Employment relationships in the state of Missouri, and in the United States at large, are generally governed by the “at-will” doctrine. When employment is “at-will,” meaning that no employment contract exists between the employer and employee, an employer can terminate an employee for any reason or no reason at all (i.e., with or without cause). As long as an employer’s reasons for firing an at-will employee are not due to discrimination based on the employee’s membership in a protected class, the employee’s refusal to commit an illegal act, or retaliation for the employee’s exercise of a legal right (such as the right to take family and medical leave), the employer will generally not incur legal liability for the decision. 49 Similarly, an at-will employee can leave a job at any time and for any reason without facing adverse legal consequences.

The two cases touched on above—Houston Methodist and St. Elizabeth—demonstrate the application of the at-will employment doctrine to employee-raised challenges of employer-imposed COVID-19 vaccine mandates: “If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment,” then they “will simply need to work somewhere else.” In many ways, the at-will doctrine is a double-edged sword; employers can mandate vaccination if they desire, but if they do, employees can (and some will) seek work elsewhere.

Previously, when individual entities were mandating vaccination, healthcare workers who opposed vaccination but wanted to remain in the field could choose to relocate to other Missouri institutions without mandates. However, now that President Biden has announced a vaccination deadline of January 4, 2022 applicable to all eligible staff at health care facilities that participate in Medicare or Medicaid programs, that choice may be limited or nonexistent. 50 Thus, the industry fear is no longer a tug-of-war for personnel between entities that have mandated vaccination and those that have not but, rather, overall staffing shortages as healthcare workers leave the industry altogether rather than comply with vaccine mandates.

Conclusion

Given the possibility of vaccine-related legislation at the state level and the recently announced federal plan to vaccinate the unvaccinated, the legal landscape remains uncertain. Yet, it is apparent that many individual hospitals and health systems in Missouri are continuing the nationwide trend of requiring their employees to get vaccinated against COVID-19. The court rulings out of Texas and Kentucky suggest that any Missouri healthcare employees seeking to challenge employer-based vaccine mandates may be fighting an uphill battle. At the same time, healthcare entities may be fighting to hold onto their employees as the pandemic rages on.

Footnotes

Zaina A. Niles, JD, MHA, MBA, is a commercial litigation associate from the Kansas City office of Husch Blackwell. Husch Blackwell represents a full spectrum of healthcare providers and other businesses in regulatory compliance and litigation matters. The information contained in this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are encouraged to consult their own attorney concerning their specific situation and specific legal questions.

References

2. United States COVID-19 Cases, Deaths, and Laboratory Testing (NAATs) by State, Territory, and Jurisdiction. Centers for Disease Control and Prevention; (last visited Oct. 2, 2021), https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days. [Google Scholar]

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7. Muoio Dave. 153 Houston Methodist employees have resigned or were fired for refusing COVID-19 vaccination. Fierce Healthcare. Jun 23, 2021. https://www.fiercehealthcare.com/hospitals/houston-methodist-makes-good-threat-to-suspend-178-antivax-employees-without-pay .

9. EEOC Issues Updated COVID-19 Technical Assistance. U.S. Equal Employment Opportunity Commission; May 28, 2021. https://www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance [Google Scholar] (“Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.”) See also What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. U.S. Equal Employment Opportunity Commission; May 28, 2021. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. [Google Scholar]

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14. Most passed and pending legislation related to employer-mandated vaccinations would prohibit local and state government entities or state agencies, as opposed to private businesses, from imposing vaccination requirements on their employees as a condition of employment Passed and pending legislation related to private businesses pertains more to prohibitions on requiring vaccination or proof of vaccination of patrons or customers as a condition of entry or access to goods or services See Pearson Lowell, et al. 50-state Update on Pending Legislation Pertaining to Employer-mandated Vaccinations. Husch Blackwell Insights. Jul 1, 2021. https://www.huschblackwell.com/newsandinsights/50-state-update-on-pending-legislation-pertaining-to-employer-mandated-vaccinations.

15. Simpson Dave. Ky Hospital Workers Can’t Block Vaccine Mandate. LAW360. Sept 24, 2021. https://www.law360.com/articles/1425283 .

16. Carlson Katie, Smith Alissa. Updates on Legal Challenges to Health Care Employers’ Voluntary COVID-19 Vaccine Mandates. JD Supra. Sept 28, 2021. https://www.jdsupra.com/legalnews/updates-on-legal-challenges-to-health-2445504/

19. Lazer David, et al. The COVID States Project #62: COVID-19 vaccine attitudes among healthcare workers. The COVID States Project. Aug 18, 2021. https://osf.io/yhk5j/

22. Id. (“Given the current surge of cases due to the Delta variant, this will continue to put pressure on health care providers to mandate vaccination for their staff.”).

23. Id. (“[R]equiring COVID-19 vaccines for health care workers is not new but is merely an extension of well-established practices and policies. Many health care facilities have long required their workers to be vaccinated against influenza, hepatitis B, and other infectious diseases.”). See also Renton Benjy, Nair-Desai Sameer, Jha Ashish K. New: Hospital Vaccine Mandate Tracker. Brown School of Public Health; https://globalepidemics.org/2021/07/24/new-hospital-vaccine-mandate-tracker/ (“Many healthcare systems have required employees to have a set of vaccinations, especially for respiratory infections such as influenza, and Covid-19 should be no different.”) [Google Scholar]

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32. See AHA, AMA, ANA Urge Widespread Vaccination to Fight Pandemic as Covid-19 Deaths Reach 750,000. American Hospital Association; Nov 4, 2021. https://www.aha.org/press-releases/2021-11-04-aha-ama-ana-urge-widespread-vaccination-fight-pandemic-covid-19-deaths . [Google Scholar]

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37. Medicare Providers Section. CMS.gov; https://www.cms.gov/research-statistics-data-systems/cms-program-statistics/2019-medicare-providers-section [Google Scholar] . See also Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers. CMS.gov; Nov 4, 2021. [Google Scholar] (“These requirements will apply to approximately 76,000 providers and cover over 17 million health care workers across the country.”). See also “CMS Issues Emergency Rule on COVID-19 Vaccination Requirements for Health Care Workers,” supra note 36 (noting that on November 4, the Occupational Safety and Health Administration released an emergency temporary standard requiring businesses with 100 or more employees to ensure their workers are vaccinated or tested weekly but stating that the standard “does not apply to the health care workplace or to federal contractors, which are subject to separate vaccination requirements.”).

40. SSM Health urges the public to get vaccinated against COVID-19; requires all team members to be vaccinated by late September. SSM Health; Jun 28, 2021. https://www.ssmhealth.com/newsroom/2021/6/ssm-health-urges-vaccine-and-requires-employees . [Google Scholar]

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50. See “Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers,” supra note 37.