December 1, 2021

Volume XI, Number 335

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Texas Bellwether Case Affirms the Legality of an Employer’s Mandatory Vaccination Policy

Over the weekend, the U.S. Southern District of Texas issued an order that provides employers—at least in Texas—with greater certainty about the legality of mandatory vaccination policies.

In December 2020, the EEOC issued interim guidance that suggested employers may mandate COVID-19 vaccines (subject to reasonable accommodation and sincerely held religious belief considerations). Replying on the EEOC’s guidance, a Houston hospital implemented a mandatory COVID-19 vaccination policy earlier this year. This policy was met with resistance and more than 100 current and former employees joined in a lawsuit against the hospital, seeking to enjoin the enforcement of the policy, arguing that refusal to comply would equate to wrongful termination under various public policy causes of action. Central to the plaintiffs’ lawsuit, they argued that any such mandatory vaccination policy amounted to unlawful coercion (i.e., the threat of termination) for refusal to take an “experimental” vaccine that has only been approved under the FDA’s emergency use authorization.

The Court rejected this argument and dismissed the case. The Court concluded that there was nothing illegal or against public policy about receiving the COVID-19 vaccine. While the Court stressed that vaccine safety and efficacy were not considered in adjudicating this case, it also acknowledged that the employer’s mandatory vaccination policy would, in its judgment, provide a safer work environment for employees and patients. Importantly, the Court also emphasized that a private employer’s mandatory vaccination policy does not amount to coercion: “[an employee] can freely choose to accept or refuse a COVID-19 vaccine; however if she refuses, she will simply need to work somewhere else.”

While this case serves as an important bellwether, it’s application could be limited—particularly in other states that provide for more expansive public policy claims. The claim chiefly relied on by the Texas plaintiffs is extremely narrow in application and generally only applies in instances where an employee is terminated for the refusal to perform an illegal act that carries criminal penalties. In short, while the legal analysis could differ in other states, employers can now cite at least one legal opinion that has endorsed the use of mandatory vaccination policies.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 166
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About this Author

Jason Weber Employment Litigation attorney Polsinelli Dallas Texas
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Jason Weber is an attorney in the Employment Litigation practice and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He focuses his practice on business disputes and employment-related consulting and litigation. He has represented Fortune 500 companies, middle-market firms, small businesses and individuals in Texas state courts, federal courts, administrative tribunals and alternative dispute resolution forums. Jason’s experience includes defending management and providing guidance on a variety of employment issues including age, disability and...

214-754-5741
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