To Vaccinate or Not to Vaccinate…

James R. Becker, Jr.

June 24, 2021

It's not really a question.

Most people have gotten vaccinated against COVID-19, but a significant number still have not.  Now a new question is looming for both employers and employees about mandatory vaccinations.  However, as an employment lawyer, my opinion is that this is not really much of a question.

As everyone knows, COVID-19 brought about gigantic changes to the personal and business lives of people all around the globe.  In the United States, this pandemic has claimed over 600,000 lives and sickened many more.  I believe the science is clear, this disease is highly transmissible and can run straight through a workplace.  Because of this, employers are weighing mandatory vaccination policies and employees are considering whether to get vaccinated or not.

The first body to weigh in on this debate was the U.S. Equal Employment Opportunity Commission.  The EEOC is the federal agency that is primarily responsible for enforcing this country’s anti-discrimination laws.  In states such as Tennessee, the EEOC enforces the primary laws relating to employment.  On May 28, 2021, the EEOC published its opinion on this subject.  It wrote that no federal equal employment law prevents an employer from requiring all employees who are physically present in the workplace to be vaccinated against COVID-19.  You can get to the technical guidance here.  Of course, employers have to be consistent about this mandate.  This means that so long as the mandate states that you must be vaccinated to come to work and it applies to everyone in the workplace, then the EEOC believes it to be legal.

As with anything else, the court system still had to weigh in on this issue.  As I expressed to a client earlier, courts were unlikely to reach a different conclusion and the first court to weigh in on this issue did not.  On April 1, 2021, Houston Methodist Hospital mandated that by June 7, 2021, every employee physically present in the workplace had to be vaccinated against COVID-19.  Not surprisingly, 117 employees filed a lawsuit to block the implementation of that requirement.  On June 12, 2021, the court in Houston dismissed the employees’ lawsuit.  You can read that decision here.

The Court concluded that there was nothing illegal about receiving a COVID-19 vaccine and getting the vaccine actually made “it safer for [other] workers and the patients in Methodist’s care.”  The employees’ remaining arguments that this requirement somehow violated federal law were so ridiculous that the Court summarily dismissed each of them (for example, it was alleged to be a violation of The Nuremberg Code).  However, I found particularly insightful the Court’s conclusion that being told to get the vaccine or get fired was not coercion.  The Court concluded,


Methodist is trying to do their business of saving lives without given them the COVID-19 virus.  It is a choice made to keep staff, patients, and their families safer.  Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.

If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired.  Every employment includes limits on the worker’s behavior in exchange for his remuneration.  This is all part of the bargain.

In the world of employment law, this conclusion is not a surprise.  The employer makes the work rules and the employee has to follow them.  If one of those work rules is getting vaccinated, then to vaccinate or not to vaccinate is not much of a question.