COVID-19 Vaccine Mandatory

Can Texas Employers Require their Employees to Get Vaccinated for COVID-19?

Murray | LobbCOVID-19

More and more Texas employers are asking whether it is legal to require employees to get vaccinated and whether they can terminate or refuse to hire employees who refuse.

In an Order issued June 12, 2021, a federal judge in Texas dismissed a lawsuit brought by employees of Houston Methodist Hospital who were suspended without pay after refusing to get vaccinated. Although that may be a positive sign for employers who want to force their employees to get vaccinated for COVID-19, complex legal questions remain for many employers.

For example:

  • Does a mandatory workplace vaccination policy comply with the ADA?
  • Does the policy comply with Title VII and other workplace laws?
  • Does an employer’s vaccine policy allow for reasonable accommodations?
  • And are terminations based on an employee’s refusal to get vaccinated applied even-handedly to all employees?

Can Employers Mandate the COVID-19 Vaccine?

The consensus so far seems to be that employers can require their employees to get vaccinated, and employers can terminate employees who refuse.

As a starting point, Texas is an at-will employment state, which means that employers can terminate a worker for any reason or for no reason at all so long as the termination does not violate federal, state, or local laws.

For example, the dismissal of the Houston Methodist wrongful termination lawsuit was based primarily on Texas employers’ right to fire employees at-will.

Texas is an At-Will Employment State

The federal court’s Order in the Houston Methodist case notes that “Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker.”

COVID-19 vaccination is not an illegal act, and the plaintiff did not allege that it was, only that she refused to be a “human guinea pig.” The Court also rejected the plaintiff’s argument that a vaccine requirement violates federal law designed to protect “human subjects” in a clinical trial, because, despite the plaintiff’s hyperbole, the employees are not human subjects in a clinical trial…

The plaintiff also argued that her employer’s mandatory vaccine policy “violates the Nuremburg Code, and that it is similar to “forced medical experimentation during the Holocaust.”

Pro tip: If you want a court to take your arguments seriously, do not compare your clients to Holocaust victims. As the Court noted:

The Nuremburg Code does not apply because Methodist is a private employer, not a government. Equating the injection requirement to medical experimentation in concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and, in many cases, death.”

Texas is an at-will employment state. Employers place all kinds of limits on workers’ behavior in exchange for their paycheck and continued employment. Just as an employer can terminate an employee who “refuses an assignment, changed office, earlier start time, or other directive, an employer can terminate an employee who refuses to get vaccinated.

The Equal Employment Opportunity Commission (EEOC) has also offered some guidance for employers who want to implement mandatory COVID-19 vaccinations – the vaccination policy can encourage employees to get vaccinated or require employees to get vaccinated, but it must comply with the ADA, Title VII, and other workplace laws.

Does a Mandatory Vaccination Policy Violate the Americans with Disabilities Act (ADA)?

If an employee has a disability that precludes them from receiving the vaccine, their employer must make reasonable accommodations. What are reasonable accommodations, though?

The ADA also says that an employer’s workplace policy can include a “requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Whether an employee’s refusal to take the vaccine – when the refusal is based on a disability – can be a basis for termination depends on the circumstances.

If the employer can make reasonable accommodations – for example, requiring the employee to wear a mask during work hours, moving the employee’s workstation, allowing the employee to work remotely, or other preventative measures, the employer should do so to avoid any possibility of a lawsuit for wrongful termination under the ADA.

However, if the employee’s refusal to vaccinate poses “a direct threat to the health or safety of individuals in the workplace” and no reasonable accommodations would alleviate that threat, then termination might be necessary under the employer’s vaccination policy.

Does an Employer’s Vaccine Policy Violate Title VII of the Civil Rights Act of 1964?

Similarly, employers are required to make reasonable accommodations for an employee’s sincerely held religious beliefs unless it would cause an undue hardship for the employer – an “undue hardship” is where an accommodation would create more than a “de minimis” cost to the employer.

Encouraging Vaccination vs. Mandating Vaccination

In most cases, employers can implement a mandatory vaccination policy with the threat of termination if an employee refuses to get vaccinated, but should they?

A mandatory vaccination policy creates legal questions and headaches like:

  • Identifying the reasons why each employee refuses the vaccine,
  • Providing reasonable accommodations for employees who have valid disability or religious reasons for refusing,
  • Determining when a reasonable accommodation would create an undue hardship for the employer, and
  • Ensuring that a mandatory COVID-19 vaccine policy is applied uniformly to all employees to avoid potential claims for discrimination.

More importantly, many employees may refuse the vaccine for reasons that do not fall under the ADA or Title VII, and the employer will need to decide whether they can afford to lose employees.

The company may fire one employee who refuses the vaccine but who wasn’t performing that well anyway. But the next employee who refuses the vaccine may be the company’s top earner – if the company terminates some employees but allows others to stay, they are opening themselves up to potential discrimination claims…

Although a mandatory vaccination policy is an option, many companies might want to consider encouraging vaccination rather than mandating it. The carrot is often more effective than the stick…

For example, businesses could:

  • Provide incentives to employees who get vaccinated, in the form of cash bonuses or other perks,
  • Provide transportation for employees to get vaccinated during work hours,
  • Provide additional sick days or paid time off for employees who get vaccinated to recover from any side effects,
  • Ensure that supervisors, board members, and other leaders in the organization get vaccinated early to lead by example,
  • Provide educational materials at the workplace that are updated regularly based on the recommendations of the CDC and other trusted sources.

If your business does decide to make COVID-19 vaccinations mandatory, you should seek the advice of your corporate counsel before finalizing your COVID-19 vaccination policy, to avoid potential lawsuits or claims of discrimination in enforcement.

Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice regarding your business’ COVID-19 vaccination policy. We also remain available to help you with all your general business, corporate, and estate planning needs.