Brandon Bell/Getty Images It shouldn’t take a federal judge to remind Americans that, no, requiring a Covid-19 vaccine to work in a hospital is nothing like what the Nazis did. And yet. In a hugely important decision, on Saturday a federal district judge in Texas upheld a hospital’s right […]
It shouldn’t take a federal judge to remind Americans that, no, requiring a Covid-19 vaccine to work in a hospital is nothing like what the Nazis did. And yet.
In a hugely important decision, on Saturday a federal district judge in Texas upheld a hospital’s right to require its employees to receive Covid-19 vaccines, and rejected claims that it violated federal law or coerced employees. The judge’s decision explicitly rejected the plaintiffs’ claims that Houston Methodist Hospital is engaged in Nazi-style medical experimentation by requiring its employees to vaccinate to protect staff and patients from Covid-19. It is acting for everyone’s safety. Saying otherwise is offensive and disrespectful, the judge made clear.
This decision, though not binding on other judges or courts, likely presages how other courts will address the issue. It should give employers—especially those dealing with vulnerable populations, like hospitals, prisons, schools, nursing homes, and daycares—courage to require their employees to get the safe, effective Covid-19 vaccines. Rightly, the judge put public health ahead of misplaced and inflammatory arguments brought by those who ought to know better about where their duties to patients lie.
While the spring has brought a decline in Covid-19, in many parts of the country vaccination rates are low enough that there is a real risk of a surge in the second half of the year. With a surge, we may see more deaths, more hospitalization, and more need for economic and school closures. Avoiding a surge is in everyone’s interest. In some work environments, the issue is even more immediate. People going to hospitals, people in nursing homes, people in prisons and adult mental assisted living facilities have suffered disproportionally from Covid-19. Now, we have several amazing vaccines against the disease—with an extremely strong safety and effectiveness record. But misled by misinformation, some reject them. That is bad for everyone, and worse for those living and working in dangerous settings. A mandate in work environments protects both workers and vulnerable patients or customers.
But employers were, understandably, hesitant—to a large extent because of concerns about whether it is legal to require a vaccine under an emergency use authorization
. The vaccines available in the United States were all authorized under a regulatory pathway that applies different, but not necessarily lower, scientific standards in the interest of a speedy public-health response. Four lawsuits have so far been filed against employers claiming that mandates under an EUA are illegal—by a corrections officer in New Mexico, school-district workers in the Los Angeles Unified School District in California, a deputy sheriff in South Carolina, and by the hospital workers in Texas. The lawsuits were clearly influenced by arguments offered by lawyers paid by anti-vaccine organizations.
The vast majority of the Houston Methodist Hospital’s 26,000-plus employees vaccinated in response to the mandate, but a small sliver of a percent did not, and sued. Over the weekend, Judge Lynn N. Hughes from the Southern District of Texas, appointed to the court by President Ronald Reagan in 1985, dismissed the lawsuit.
The judge rejected the argument that employees are illegally coerced to get the vaccine. The judge pointed out that there is nothing illegal in getting the vaccine, and that the hospital is not conducting a clinical trial, but “trying to do their business of saving lives without giving them the Covid-19 virus. It is a choice made to keep staff, patients, and their families safe.”
Federal law that tells the secretary of human health and services to inform recipients of vaccine that they can “accept or refuse” the vaccine does not “apply at all to private employers,” only to the secretary, who is, the judge concluded, authorized to require an EUA vaccine.
Comparing this effort to make the hospital safer to Nazi experiments “that caused pain, mutilation, permanent disability, and in many cases, death” is, concluded the judge, “reprehensible.”
As to the employees’ claims that they have been coerced, the judge reminds us that’s not how it works in the workplace. Employees “can freely choose to accept or refuse a Covid-19 vaccine”; if they refuse, they “will simply need to work somewhere else. If a worker refuses an assignment… he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
Traditionally, employers get to set workplace rules. This includes health and safety rules—like requiring a vaccine. Judge Hughes explained, in strong language, that federal law did not remove that power. Employees do not have the freedom to ignore a workplace rule because they read misinformation online, believe in faulty analogies, or just want to put their choices ahead of their patients’ well-being.
Arthur Caplan is director of the Division of Medical Ethics at the New York University Grossman School of Medicine.
Dorit Reiss is professor of law at the University of California, Hastings College of the Law.