In a year in which medical workers have been praised using the popular phrase “health care heroes,” many of these workers find themselves being threatened with suspension or termination for refusing the COVID-19 vaccine. Following suspension of 178 employees, a federal court judge in Texas has dismissed a lawsuit in which 117 employees of Houston Methodist Hospital sued over the mandating of COVID-19 vaccination as a condition for employment.1
Judge Lynn N. Hughes of the U.S. District Court for the Southern District of Texas stated that the plaintiffs had no case. She also stated plaintiffs misconstrued the law and misrepresented facts, “including that the requirement amounted to forced medical experimentation because COVID-19 vaccines have received emergency Food and Drug Administration authorization but not full approval” reported NBC News.1
Current FDA guidelines state that upon administration of a product manufactured by a company that has been granted an Emergency Use Authorization (EUA) to distribute the product in the U.S., which would include all COVID-19 vaccines currently being distributed in the United States, recipients must be informed “that they have the option to accept or refuse the EUA product and of any consequences of refusing administration of the product” and “of the significant known and potential benefits and risks associated with the emergency use of the product, and of the extent to which such benefits and risks are unknown.” 2
Drugs and vaccines distributed under an EUA require less evidence demonstrating safety than products fully approved and licensed by the FDA.3
Legality of mandating an EUA COVID-19 Vaccines Remains Unclear
The legality surrounding the mandating of an unapproved FDA biological product is wading into novel legal territories. A recent article by Carolyn Hendler in The Vaccine Reaction noted:
Historically, an experimental vaccine is in development for approximately 10-15 years before the FDA licenses it for use by the general public, allowing the public to gain confidence in its safety and effectiveness.4
According to the Kaiser Family Foundation (KFF), which provides information on health policy issues, the above FDA statements can be interpreted differently and highlight both legal and ethical questions surrounding mandating a vaccine that is still being distributed under an EUA. KFF states:
It is unclear whether COVID-19 vaccines can be mandated while operating under an EUA, and courts have not yet ruled on this issue.3
Houston Methodist Employees Refusing Vaccine Placed on Unpaid Leave with Eventual Termination
Grounds for the lawsuit, which was filed Montgomery County in May, argued that the vaccines were experimental and, because they were not yet officially licensed by the FDA, Houston Methodist could not force employees to get the vaccine “on penalty of termination or other sanctions.”5 Plaintiff attorney Jared Woodfill said he intends to file with the Texas state court and that he would appeal to the U.S. Supreme Court, if necessary.1 5
Houston Methodist employees who refused the vaccine by June 7 were placed on unpaid suspension, which will eventually lead to termination. Employees were given the opportunity to file for religious or medical exemptions, or deferrals in the case of pregnancy.6However, a number of employees testified at a May 6, 2021 Texas Senate hearing that their COVID-19 vaccine exemptions were rejected by hospital administration officials.7
According to NBC News, 285 Houston Methodist employees received medical or religious exemptions and 332 others were granted deferrals. Nearly 25,000 Houston Methodist staff members have been vaccinated.5
Majority of Washington, DC and Maryland Hospitals Plan to Mandate Vaccine for Employees
The Washington Post reports that the “the vast majority” of hospitals in Washington, DC and Maryland will also begin requiring a COVID-19 vaccine for all employees.7 Employees who refuse to get vaccinated must participate in weekly coronavirus testing.
Hospital leaders in DC, Maryland, and Houston state that the decision was made to protect both patients and staff. In an e-mail to employees shared with MedPage Today, Houston Methodist Hospital CEO Marc Boom wrote:
Science has proven that the COVID-19 vaccines are very safe and very effective… By choosing to be vaccinated, you are leaders—showing our colleagues in healthcare what must be done. 8
In a later statement, Boon is quoted as saying that COVID-19 vaccines have gone through rigorous testing and are not experimental. 6
There are opposing views among the hospital’s staff and MedPage Today reported that Houston Methodist Hospital Administrator Bob Nevens wrote in a petition against the required COVID-19 vaccine:
My right to protect myself from unknown side effects of these vaccines have been placed below the optics of ‘Leading Medicine.’ 8
More Nursing Homes Mandating COVID-19 Vaccine for Employees
An increasing number of nursing homes are also requiring their staff to receive COVID-19 vaccine, citing low vaccination rates for nursing home employees.9
The Washington Post reported in January that an estimated 80 percent of nursing home employees chose not to be vaccinated during the initial COVID-19 vaccine roll outs.10
Vaccine Hesitancy Amongst Largely Black and Latino Nursing Home Staff
Harvard University health policy professor David Grabowski, PhD said hesitancy to get the new COVID vaccine shouldn’t come as a surprise to anyone familiar with long-term healthcare facilities. Low wages and poor labor conditions associated with long-term healthcare facilities, as well as “earlier missteps fighting the coronavirus pandemic,” 10 have caused a general mistrust. Dr. Grabowski said:
This is a forgotten workforce that hasn’t been treated well for years. We’ve been slow with [personal protective equipment], we’ve been slow with hazard pay, and all of a sudden now, they want to go fast with vaccinations… There’s good reason they’re so distrustful.10
Black and Latino workers make up the majority of long-term facility staff. Reverend Derrick DeWitt, a Maryland nursing home director, cited Internet misinformation, ongoing lack of medical care access for minorities, and general mistrust of the medical establishment, which was fueled by historical abuse of minorities by the medical profession, such as the Tuskegee experiment. Rev. DeWitt said:
These folks don’t even have access to a doctor when they’re sick. Then suddenly you say, ‘Show up in a parking lot and get this mysterious vaccine.’ It’s hard for them to trust you. People of color have become very pessimistic about being guinea pigs.10
Employees Have EEOC Protection from Discrimination
The Equal Employment Opportunity Commission (EEOC), which protects employees from discrimination, has released guidelines on workplace vaccine requirements. The guidelines state that, while employers can legally require the vaccine to enter a physical workplace, “employers must comply with the reasonable accommodations of the ADA… the Civil Rights Act, and other EEO considerations.”11 Alternative arrangements must be made for employees who fall into these categories, which include but are not limited to not being vaccinated for religious or medical reasons. 12
Attorney Accuses Houston Methodist of Placing Profits Over People
Woodfill has stated that Houston Methodist Hospital CEO Marc Boom is placing profits over people in an attempt to be branded as the first hospital to mandate employee vaccinations. Woodfill stated:
It’s clearly about the bottom line but not about the people who put their lives on the line. This is how they’re repaid, with a pink slip.5
Woodfill also said that when it comes to the legality of vaccine mandates in the workplace, that is a question that needs to be answered for his clients, as well as hospitals and employees everywhere. 5
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Click here to view References:
1 Romero D. Judge dismisses lawsuit by Houston hospital employees over COVID-19 vaccinations. NBC News June 13, 2021.
2 U.S. Food and Drug Administration. Guidance Documents: Emergency Use Authorization of Medical Products and Related Authorities. January 2017.
3 Musumeci M. Key questions about COVID-19 vaccine mandates. Kaiser Family Foundation Apr. 7, 2021.
4 Hendler, C. Mandating a novel vaccine is a novel legal issue. The Vaccine Reaction June 7, 2021.
5 Madani D. Houston hospital suspends 178 employees who refused COVID-19 vaccination. NBC News June 9, 2021.
6 Lenthang M. 117 employees sue Houston Methodist hospital for requiring COVID-19 vaccine. Yahoo! News May 29, 2021.
7 Fisher BL. Texas Bill Still Pending After Historic Hearing to Prohibit Vaccine Mandates and COVID Vaccine Passports. NVIC Newsletter May 21, 2021
8 Chason, R. D.C., Md. Hospitals will require employees to get vaccinated against COVID-19. The Washington Post June 9, 2021.
9 Basen R. Houston Methodist: Get vaccinated, or get fired. MedPage Today Apr. 28, 2021.
10 Paulin, E. More nursing homes are requiring staff Covid-19 vaccinations. AARP May 27, 2021.
11 Chason R., Tan R, Portnoy J, Cox E. Most nursing home workers don’t want the vaccine. Here’s what facilities are doing about it. The Washington Post Jan. 27, 2021.
12 U.S. Equal Employment Opportunity Commission. Federal Laws Prohibiting Job Discrimination Questions And Answers.
13 Ebbs S. What to know if your employer requires vaccinations: federal legal protections. ABC News May 28, 2021.