Can You Fire Employees Who Refuse Vaccines?

Dana C. Ring


August 2, 2021

Dozens of people in shadow surround a giant vial of liquid with the words

In June, a federal judge dismissed Bridges v. Houston Methodist Hospital, a lawsuit filed by 177 hospital employees contesting its requirement of COVID-19 vaccinations to retain employment. The decision is the first of its kind regarding an employer mandating COVID vaccines amid the pandemic. As the country continues to reopen, employers are navigating new employment waters with little to no precedent on which to rely. Although courts in other jurisdictions may rule differently, particularly those that enacted statutory causes of action for wrongful termination on public policy grounds, this decision provides helpful guidance for other organizations in similar situations.

In April 2021, Houston Methodist Hospital (HMH) told its employees that receiving a COVID-19 vaccine was a condition of continued employment. A private institution in Texas that includes an academic medical center and six community hospitals, HMH was the first large-scale medical institution to mandate COVID-19 vaccinations for all of its approximately 26,000 employees. HMH rolled out the policy by starting with members of the management team, 99% of whom received vaccines by the requested deadline, with the other 1% receiving exemptions on the basis of medical conditions and sincerely-held religious beliefs. The next phase required the remaining staff members to complete both doses of the vaccine by June 7, 2021, or receive a two-week suspension. If the requirement was not met by the end of that two-week period, non-compliant employees would face termination.

The employees represented in Bridges filed suit against the hospital, claiming it was unlawful for HMH to require workers to be vaccinated. They argued that the vaccine was experimental, dangerous, and forced them to act as “human guinea pigs” in violation of the Nuremberg Code, a set of research ethics established in 1947 at the close of World War II in response to Nazi Germany conducting human medical experiments without consent. The plaintiffs also requested a temporary restraining order to stop the hospital from enforcing the policy and to prevent any terminations.

The U.S. District Court for the Southern District of Texas dismissed the case on several grounds. First, the court reasoned that Texas law only protects employees from being terminated for refusing to commit an illegal act, and receiving a COVID-19 vaccine is not unlawful. The court also looked to guidelines released by the federal Equal Employment Opportunity Commission (EEOC) on May 28, 2021, which specifically allow for employer-mandated vaccinations so long as employees are accommodated with exemptions on medical or religious grounds. In this case, the evidence showed that HMH provided such exemptions to applicable employees. The court also noted that hospitals and medical facilities may have a greater justification than other businesses for mandating vaccination against COVID-19 because medical employees are at higher risk of exposure and are more likely to interact with vulnerable populations.

The court also specifically examined the rules of at-will employment and found that Texas law does not recognize a public policy exception for at-will employment. The court went further and found that, even if state law did recognize such an exception, the mandatory vaccine policy does not contradict public policy. This may provide persuasive precedent in jurisdictions like California that enacted statutes providing a cause of action for wrongful termination in violation of public policy.

Regarding the plaintiff’s argument that the vaccines were only approved by emergency order of the FDA and therefore should not be imposed on those who do not want to receive them, the court ruled that this does not impact private employers. The FDA emergency authorization neither restricts nor expands the rights and responsibilities of private employers, the court found, and HMH was not forcing the vaccine into employees’ arms. Rather, HMH gave employees a choice to receive the vaccine if they wished to continue their employment with the organization. Employees who choose not to receive a vaccine (and do not quality for an exemption) are making a voluntary choice—a choice to work elsewhere.

With at-will employment, the court emphasized, termination may lawfully follow employee actions such as refusing an assignment, insisting on different work hours or violating company policies. In this case, the court found that HMH’s policy requiring a COVID-19 vaccine is no different. Indeed, this is comparable to the long-accepted practice of hospitals and other medical institutions requiring employees to be vaccinated against certain conditions such as hepatitis and the flu.

Finally, as to the plaintiffs’ claim that the employer-mandated vaccination program violated the Nuremberg Code, the court admonished plaintiffs’ counsel for drawing such a ghastly parallel. The court characterized this claim as “reprehensible” and rebuked the plaintiffs for likening a voluntary COVID-19 vaccination policy to the human experimentation the Nazis performed on kidnapped victims in prison camps during the war. The court likewise rejected classification of the vaccine as “experimental and dangerous,” dismissing the entire argument outright. 

Key Points for Employers Moving Forward

Judicial outcomes on this issue are likely to vary around the country, as will statutorily enacted protections that may apply. For example, in May, Montana became the first state to recognize a person’s vaccination status as a protected category. Employers in that jurisdiction may not require employees to get vaccines or to reveal their vaccination status. While other states have not yet taken this approach, it is important to monitor local legislative developments in any jurisdiction where your enterprise operates.

Also, any employer that decides to implement a mandatory COVID-19 vaccination policy should be prepared to face a potential class action. Typically, an individual employee would file a wrongful termination case, but in this burgeoning area, businesses may instead face claims from a group of employees.

Before implementing a mandatory vaccine policy, employers should formally communicate to their employees about why having a vaccinated workforce is essential for health and safety and furthers the operational goals of the business. They should also provide time for discussion, reasonable accommodation requests, and the documentation process.

Additionally, employers should ensure they have a clearly-written policy exemption for those who wish to opt out of the vaccine for sincerely-held religious beliefs or medical necessity, detailing how they will protect those employees who are not vaccinated by way of accommodations like continued social distancing, workplace layouts, virtual meeting options, masking and remote work arrangements. A well-conceived accommodation plan may boost the likelihood of success in dismissing or defending a lawsuit filed in opposition to a vaccination policy.

Be sure to communicate with employees regarding how the organization will document vaccination status and thoroughly document all communications, including processes and implementation logistics. Some employers may elect to proceed with a vaccine attestation form, relying on the “honor system” for employees to report vaccination status. Others may impose a mandatory reporting policy that requires proof of vaccination, providing it remains lawful in their jurisdiction. Regardless, all employers should maintain strict confidentiality of vaccination status, just like all other private HIPAA-protected employee information, keeping any documentation in a confidential medical file separate from the personnel file.

Dana C. Ring is a partner in Wood Smith Henning & Berman’s Dallas office, where she focuses on providing strategic business advice on labor and employment issues, pre-litigation employment claims, and litigation management.