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Louisiana Employers May Be Able to Discharge Unvaccinated Workers Under Employment-at-Will Doctrine

In a pair of related rulings in Hayes v. University Health Shreveport, LLC, and Nelson v. Ochsner Lafayette General, the Supreme Court of Louisiana held on January 7, 2022, that private Louisiana employers may mandate COVID-19 vaccines for their employees. “[T]his court finds Employer is entitled to terminate Employees for failure to comply with the vaccine mandate,” the court said in a unanimous decision written by Chief Justice John Weimer, finding “no exception to [Louisiana’s] at-will employment doctrine.”

In August 2021, the employer, a healthcare system, informed its employees statewide that they would have roughly two months to be fully vaccinated or they could face disciplinary action including mandatory use of leave time and eventual termination of employment. In response, roughly 75 employees in the Lafayette and Shreveport areas filed two separate lawsuits arguing that the employer’s ability to dismiss them as at-will employees was tempered by the Louisiana Medical Consent Law, La. R.S. 40:1159.1, et seq., which governs the right of an adult to refuse medical treatment, and Louisiana Constitution art. I, § 5, which guarantees a right to privacy.

The Supreme Court of Louisiana rejected both arguments. The court held that the Louisiana Medical Consent Law applies only to the relationship between a healthcare provider and a patient—not to an employment relationship between a private employer and employee. Regarding the employees’ right-to-privacy claim under La. Const. art. I, § 5, the supreme court held that art. I, § 5 only applies to governmental actors—not private employers.

The Supreme Court of Louisiana’s holding does not appear to affect an employee’s right to seek exemption from the mandate under state or federal antidiscrimination laws or assert a claim for violation of such laws in connection with required vaccination.

Notably, the decisions were issued on the same day that the Supreme Court of the United States heard oral argument regarding the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), which took effect, in part, on January 10, 2022, and the Centers for Medicare and Medicaid Services’ vaccination mandate, which requires certain healthcare workers to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

There are plenty of uncertainties for Louisiana employers seeking to manage their risk with COVID-19 in the Louisiana workplace, but exposure for a wrongful termination lawsuit under certain Louisiana laws will not be one of them. Louisiana employers that are mandating vaccination may want to monitor and manage risk under the Louisiana Employment Discrimination Law, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 13

About this Author

Andrew P. Burnside, Ogletree Deakins, Employment Law Matters Lawyer, Trade Secrets Attorney

Drew Burnside represents employers in federal and state courts, as well as federal and state administrative agencies, in employment law matters. Drew is admitted in Louisiana and Texas.

Drew has received an “AV” Preeminent Peer Review Rating by Martindale-Hubbell and was on the editorial board of Tulane Maritime Law Journal at Tulane University. He is a chapter editor of and contributing author to The Family and Medical Leave Act treatise, published by BNA. Drew also was contributing author to The Developing Labor Law (3rd ed. BNA).

Claire R. Pitre Labor & Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart New Orleans, LA

Claire is an associate in the New Orleans office of Ogletree Deakins where she represents employers of all sizes in state and federal court litigation and administrative proceedings. Prior to joining Ogletree, Claire represented various private and quasi-public entities in a variety of litigation matters including labor and employment, construction, complex commercial litigation, and environmental litigation. Additionally, Claire has experience in defending EEOC investigations, FLSA, ADEA, ADA, WARN, Title VII, and Section 1983 lawsuits.

Prior to and during night school at Loyola...