As Covid-19 cases tick up across the country, hospitals and health systems are mandating that their employees get vaccinated. In response, healthcare workers are taking to the streets in protest and filing legal challenges. But, providers have solid legal recourse to block these lawsuits, experts told MedCity News.

This is evident in a recent high-profile lawsuit, where more than 100 healthcare workers at Houston Methodist, a Texas-based health system, challenged the systemwide policy ordering employees to get vaccinated by June 7 or face suspension, and eventually, lose their jobs. A federal judge dismissed the suit, saying Houston Methodist did not break federal law. The plaintiffs have already filed an appeal.

Despite the health system’s win, it is unlikely that this will be the only such lawsuit to be filed.

“It’s as much a numbers game as anything else,” said Norma Zeitler, partner at law firm Barnes & Thornburg LLP, in an email. “The more employees [that are told by an employer] to do something that [they] either do not want to do or cannot do, the more likely it is that an employee…will challenge the requirement in court.”

In addition, as the number of hospitals requiring workers to get the Covid-19 shot increases, the likelihood of a facility denying an exemption request without correctly analyzing the reason for the exemption could also increase, she said.

Employers are required to make reasonable accommodations under the Americans with Disabilities Act for employees who may not be able to safely get the vaccine due to a disability and under Title VII of the Civil Rights Act for employees whose religious beliefs conflict with the vaccine mandate.

“If an employer were to grant each of these exemption requests as a reasonable accommodation, then there is no legal harm to the plaintiffs and there would likely be no lawsuit,” Zeitler said.

But if many employees seek an exemption, then there are chances that the exemption request is denied, thereby increasing the probability of a lawsuit. So how can health systems argue their case?

Let’s imagine that a vaccine exemption request is denied and the employee is suspended or fired that leads the fired worker to file a lawsuit. The hospital could argue that allowing an unvaccinated worker into the hospital would pose a direct threat to the fired worker, or to others, and then further argue that it’s a threat that cannot be eliminated by reasonable accommodation, such as social distancing, Zeitler said.

Key to the direct threat argument is the specific facts and circumstances of the healthcare organization and employees, including the vaccination rates in the community and the facility, as well as the positions the employees hold and whether they are patient-facing jobs.

“My sense is that courts are going to be very hesitant to substitute their judgment over a hospital’s in deciding whether a direct threat exists,” Zeitler said.

Mandating vaccination also has its roots in long-established precedents.

Until Covid-19 vaccines receive full Food and Drug Administration approval — the lack of approval being one of the reasons Houston Methodist employees cited for not wanting to take the vaccine — healthcare providers can rely on the 1905 Supreme Court precedent set in Jacobson v. Massachusetts, said Richard Gerakitis, a partner at Troutman Pepper specializing in employment and labor, in an email. In that decision, the Supreme Court said the city of Cambridge, Massachusetts, could fine residents who refused to receive the smallpox vaccine.

In general, Gerakitis believes that providers will emerge victorious in these types of lawsuits.

“Much in the same way that ‘Take Home’ lawsuits that were feared initially have not materialized for employers or building owners, there does not appear to be a pathway to halting mandates unless a state law prohibits such a vaccination,” he said. “Take home” lawsuits are complaints filed by anyone who claims to have contracted Covid-19 from someone else who brought the disease home with them. So in the case of providers, it could be a family member of an employee, a caregiver of a patient, a patient or even employees themselves. 

Further, the Equal Employment Opportunity Commission’s recent guidance on employment discrimination laws, the DOJ’s legal opinion on the vaccine’s emergency use and medical societies’ support of mandatory vaccinations all add heft to providers’ decisions to require their workforce to get vaccinated, Gerakitis said.

And that means there’s plenty of legal cover for providers on the issue of vaccine mandates for employees.

Photo: Chris Ryan, Getty Images