In June, a judge in the U.S. District Court of Texas – Southern Division, confirmed employers can terminate employees for refusing to get the COVID-19 vaccine. In a lawsuit brought by more than 100 employees at Houston Methodist Hospital, U.S. District Judge Hughes granted Methodist’s motion to dismiss the lawsuit. The employees attempted to allege that they were being forced to take a vaccine that they deemed “experimental.” This argument was summarily dismissed as the Judge noted that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. Receiving a COVID-19 vaccine is not an illegal act and carries no criminal penalties.
While most legal scholars, including this firm, have advised clients that absent disability and religious accommodations, an employer can mandate employees receive the COVID-19 vaccination, this lawsuit reaffirms that advice. Under all current legal guidance, employers are free to choose the requirements they place on their employees returning to the workplace. The CDC and OSHA both recommend non-vaccinated individuals wear masks and socially distance. We have not yet had any court issue any decisions on liability employers face when those employers choose to not require vaccines, masks, or implement social-distancing measures. From a legal causation standpoint, it will likely be difficult for a plaintiff to establish that these lack of safety measures caused the employee to transact COVID-19. However, there likely will be litigation on this point and the negative press an employer may face for an outbreak or employee death, may give employers enough reason to require some safety measures even if that falls short of requiring vaccinations.
While the Methodist lawsuit confirmed employers can mandate the COVID-19 vaccine, the fact is Methodist also lost more than 100 employees and likely has other disgruntled employees who begrudgingly received the vaccine. Depending on the response an employer receives from its employees, the employer may want to consider “strongly encouraging” the vaccine and either having non-vaccinated employees work remotely or wear masks in the office. Given some of the most recent recommendations of the CDC, employers may also just go back to a full-mask mandate for all employees, vaccinated or not. The current climate is very volatile for employers and employees, but employers do have flexibility as they attempt to balance the health, safety, and personal preferences of employees.
