Image by Shafin Al Asad Protic from Pixabay
As the kids say, I’m 💀💀💀.
The setup
In early April, a hospital announced a policy requiring all employees to receive the COVID-19 vaccination by June 7. So over 100 employees sued in federal court, seeking an injunction to stop the mandate. They asserted four claims relating to any termination for refusing to get vaccinated.
- Wrongful termination
- Violation of public policy
- Violation of Emergency Use Authorization / Informed Consent
- Violation of the Nuremberg Code
In this opinion issued over the weekend, the court tore through each argument like a knife through butter.
Wrongful termination
This case is pending in Texas. Under state law, an employer cannot fire an employee for refusing to engage in illegal activity. That’s wrongful termination.
Except, here’s the thing. “Receiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties,” said the court. Rather, the plaintiffs refused “to accept inoculation that, in the hospital’s judgment, will make it safer for their workers and the patients in [the hospital’s] care.”
The plaintiffs argued that the currently available COVID-19 vaccines are experimental and dangerous. The court was having none of that. “This claim is false,” the opinion states. “It is also irrelevant.”
No crime. No wrongful termination.
Public policy violation
Some states recognize a public policy exception to at-will employment. For example, in Pennsylvania, you can’t fire someone for serving on a jury or refusing to submit to a polygraph test. In Texas, however, there is no public policy exception to the at-will employment doctrine. You can be fired for any reason or no reason at all. So, an employee can be fired for refusing a vaccine.
However, the judge noted that even if Texas did recognize a public policy exception, refusing to get the COVID-19 vaccine ain’t it:
The injection requirement is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.
On May 28, 2021, the Equal Employment Opportunity Commission said that employers can require employees be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. This is not binding, but it is advice about the position one is likely to meet at the Commission.
And so much for the public policy argument.
Emergency Use Authorization / Informed Consent
Tangentially related to the public policy argument is the plaintiffs’ argument that the hospital cannot force them to receive “unapproved” medicines in emergencies and treat them as a “human guinea pig.” Indeed, the FDA has not approved any COVID-19 vaccines, and they are for emergency use only. Product recipients must understand the “potential benefits and risks of use” and “the option to accept or refuse administration of the product.”
The problem with this argument is that emergency use authorization requirements don’t apply to private employers like the hospital.
Undeterred, the plaintiffs say that federal law requires that participants in mandated vaccinations give legal, effective, and informed consent before participating in a human trial; employers can obtain this consent through coercion or undue influence.
It’s right about here where the court really starts to get ticked off with the plaintiffs:
[Plaintiffs have] again misconstrued this provision, and … now also misrepresented the facts. The hospital’s employees are not participants in a human trial. They are licensed doctors, nurses, medical technicians, and staff members. The hospital has not applied to test the COVID-19 vaccines on its employees, it has not been approved by an institutional review board, and it has not been certified to proceed with clinical trials.
(Grab your 🍿🍿🍿. It’s about to get worse.)
Nuremberg Code
I’m going to let Judge Lynn Hughes bring it home from here:
[Plaintiffs] also say[] that the injection requirement is invalid because it violates the Nuremberg Code, and [they] likens the threat of termination in this case to forced medical experimentation during the Holocaust. The Nuremberg Code does not apply because [the Hospital] is a private employer, not a government. Equating the injection requirement to medical experimentation in concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.”
My friend Jon Hyman predicted that “117 employees are about to learn what it feels like to lose a lawsuit in spectacular fashion.”
Yep. Nailed it.
The overall takeaway is that businesses — especially those in the healthcare industry — are trying to keep workplaces safe. If they want to mandate vaccinations, that’s their prerogative. Like any other directive (an assignment, changed office, earlier start time, etc.), a worker can decline. But, these choices have consequences. And, sometimes, you get fired. That is all part of the bargain.