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Workplace Vaccine Mandates Boosted by Hospital Suit’s Dismissal

June 15, 2021, 9:19 AM

A Texas federal judge dealt a blow to workers aiming to knock down Covid-19 vaccine mandates in court with a blistering opinion that tossed out a lawsuit against Houston Methodist Hospital.

U.S. District Court Judge Lynn Hughes’ June 12 ruling—the first to weigh in on whether emergency federal approval affects employers’ ability to mandate vaccinations—will likely give other courts more confidence to reject similar lawsuits against workplace requirements, legal observers said.

The Houston Methodist lawsuit is one of a handful of court challenges to employer inoculation mandates that claim the vaccines can’t be mandatory because the U.S. Food and Drug Administration has only authorized them for emergency use. The federal law on the FDA’s expedited authorization process contains a section that refers to such products as “unapproved” and states individuals have an option to refuse them.

Hughes, a Reagan administration appointee, said the language on emergency use products applies to powers and obligations of the head of the U.S. Department of Health and Human Services, not a private employer. He also rejected the lawsuit’s claim that the mandate was coercive, saying that employers can set policies and fire workers who refuse to comply.

The judge’s five-page opinion also blasted the Houston Methodist workers’ “press-release style” complaint, calling claims that equated the hospital’s vaccine mandate to medical experimentation in Nazi concentration camps “reprehensible.”

“Frankly, I was glad to see the decision because we needed to get a dose of reality in this hyperbolic discussion,” said Kevin Troutman, an attorney in Fisher & Phillips LLP’s Houston office and leader of the firm’s vaccine work group. “I hope that this will prove to be a good framework for other courts that see similar types of cases.”

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

Persuasive Authority

Although the ruling has no binding power, it’s the first on the issues and probably will serve as persuasive authority to other courts, said Dorit Reiss, a law professor at the University of California Hastings College of the Law who specializes in vaccine policy.

As a parallel in vaccine-related litigation, Reiss noted that a California federal judge was the first to rule on a challenge to a state law that repealed the personal belief exemption to vaccine mandates for students. Even though that 2016 decision wasn’t binding on other courts nor was a final order—the judge denied a preliminary injunction request—it was cited in all the subsequent court decisions that upheld the law, she said.

The legal argument against Covid-19 vaccine mandates that’s based on their emergency authorization is the strongest in the anti-mandate camp’s weak hand, said Glenn Cohen, a Harvard Law School professor who directs the school’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

The Texas federal judge rejecting that argument in a short, direct opinion is significant, signaling the ruling’s potential persuasive power on other courts, Cohen said.

The lawsuit against Houston Methodist also seemed designed to whip up ideological outrage that’s associated with the political right in America, said Nicholas Bagley, a University of Michigan law professor who’s written about health law and regulatory policy. Yet judges who are sympathetic to that worldview also generally support employers’ authority to set conditions of employment, he said.

“If you’re a conservative judge, the argument doesn’t speak to you, and if you’re a liberal judge, the argument doesn’t speak to you,” Bagley said. “I don’t think it’s likely to go anywhere, though I could imagine a different judge saying something different. Judges say the darnedest things.”

Workers Plan Appeal

The Houston Methodist Hospital workers will appeal the ruling that dismissed their challenge to the hospital’s vaccine mandate, the workers’ lawyer said Monday.

In addition to fighting the hospital’s vaccine mandate in the U.S. Court of Appeals for the Fifth Circuit, attorney Jared Woodfill said the workers are pursuing a separate case that brings only state law claims in hopes of getting the issue before the Texas Supreme Court. The dismissed lawsuit was originally brought in state court but was removed to federal court because it alleged violations of federal law.

“All of my clients continue to be committed to fighting this unjust policy,” Woodfill said in a statement.

Houston Methodist, which has 26,000 employees, suspended 178 workers for failing to meet its June 7 deadline to get vaccinated.

“All our employees have now met the requirements of the vaccine policy and I couldn’t be prouder of them,” Marc Boom, president and CEO of Houston Methodist, said in a statement.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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