To Require Vaccinations, or Not to Require … That is the Question
One of the most common questions we have been asked by our clients recently regards being able to impose requirements on employees to be vaccinated against COVID as a condition of employment. I realize this is a very touchy issue to discuss as many people have formed opinions with or without evidence or precedent. Currently, the available vaccines are authorized for emergency use and not fully approved. Our guidance to this point is that companies should only recommend or request that employees be vaccinated, not require it. Waiting a bit longer for the vaccines to be fully authorized by the FDA would put the company on firmer ground to impose the requirement.
Can Employers Require the Covid Vaccine?
Yesterday, a good friend of mine (and a great attorney as well, by the way) shared this with me:
Last month, 117 employees of Methodist Hospital in Houston sued the hospital over its requirement that all employees receive a COVID-19 vaccination or risk being fired. Plaintiffs filed the suit in a Texas state court, but the hospital removed it to federal court in Houston on June 1, 2021. The judge assigned to the case, Lynn Hughes, is 79 and a Reagan appointee. He has a reputation for being brusque, blunt, and a bit outspoken.
Plaintiffs asked for a temporary restraining order preventing the hospital from requiring vaccination or from firing them. On June 4, just three days after Hughes got the case, he denied the TRO.
On the same day, in an unusual move, Hughes issued an order that basically invited the hospital to file a motion to dismiss the case. Hughes set a deadline of June 8 for such a motion, a deadline of June 10 (two days!) for the plaintiffs to respond, and a hearing for June 11. An extraordinarily tight schedule and no particular need for such speed.
On June 12, a Saturday, Hughes issued an opinion granting the hospital's motion to dismiss the case with prejudice. Read the opinion in full. It won't take long; it's only five pages. But the most astonishing feature of this case is the breathtaking speed from the day it got to federal court to the day of dismissal: 11 days! My friend (a Dallas-based attorney) said that he’d never seen anything like it, not even close.
So read and judge for yourself. Feel free to share the opinion with your corporate counsel if you are considering a vaccine mandate. But most of all, be safe, be smart, and be responsible. Although much progress has been made to defeat this virus, the war is far from over.
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J Rollins is the co-founder and CEO of ETHIX360. J is a well known leader and innovator who has served on senior leadership teams ranging in responsibility from Chief Revenue Officer, Chief Marketing Officer, SVP of Product Strategy and Chief Operating Officer.
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