On The Docket
David B. Brushwood, BSPharm, JD
The law generally protects an employer’s right to establish policies that the employer considers to be in the best interest of the people it serves. Employees must comply with the employer’s policies, unless the policies would require the employee to engage in unlawful conduct. A federal court in Texas recently dismissed a lawsuit brought against a hospital by 117 of its employees who alleged that the hospital was illegally requiring the employees to be vaccinated against COVID-19.
Background
In April 2021, the hospital announced that employees were required to be vaccinated at the hospital’s expense. The employees who filed the lawsuit against the hospital contended that the vaccination requirement was invalid, because it was in violation of federal law.
The employees first argued that no one can be mandated to receive “unapproved” medications, and that no currently available vaccines had been fully approved by FDA. The employees cited a federal law that permits FDA to issue an emergency use authorization (EUA) for unapproved products.
The law states that FDA authorization shall “establish appropriate conditions designed to ensure that individuals to whom the product is administered” are informed of the “potential benefits and risks of use” and of “the option to accept or refuse administration” of the product.
The employees also argued that the hospital’s vaccination mandate violated federal laws governing the protection of human subjects of experimentation, since the requirement was “forcing employees to participate in a human trial because no currently available vaccine had been fully approved by FDA.”
Finally, the employees argued that the vaccination requirement violated the Nuremberg Code. They compared the threat of their being fired to “forced medical experimentation during the Holocaust.”
Rationale
The federal judge concluded that the employees had “misconstrued” the law.
The cited EUA provisions apply only to FDA, and do “not apply at all to private employers like the hospital in this case.” The EUA law “does not confer a private opportunity” for employees to sue their employer.
The judge then noted that “the hospital’s employees are not participants in a human trial.” The judge said, “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.”
The judge was particularly critical of the employees’s reference to their circumstances as being equivalent to the Holocaust. “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,” said the judge.
Finally, the judge addressed the employees’ claim that they were being coerced to accept vaccination with the threat of being fired. The judge said, “This is not coercion.” The judge added that the hospital was “trying to do their business of saving lives without giving patients the COVID-19 virus.” According to the judge, the employees “can freely choose to accept or refuse a COVID-19 vaccine,” however if they refuse, they “will simply need to work somewhere else.”
The employees’ lawsuit against the hospital was dismissed.
Discussion
In a clinical setting, health care workers are free, even encouraged, to have their own opinions. Diversity of ideas within the health care workforce strengthens the quality of patient care. Disagreements over the appropriateness of a patient’s care can be discussed and resolved through a process of consultation.
On the other hand, as the judge in this case ruled, misconstructions of the law, misstatements of fact, and disrespectful comparisons with genocide cannot be used to justify a refusal to follow a hospital policy that is intended to protect the hospital’s patients and personnel.
According to this court ruling, health care workers who refuse to follow a hospital’s mandatory vaccination policy will need to find employment elsewhere.