vaccines when it announced on July 26th
that it would require its healthcare personnel
to be vaccinated against COVID-19
in order to provide services at Veterans
Health Administration facilities.5 VA personnel
have eight weeks to receive the
vaccination in order to maintain eligibility.
In the private sector, healthcare facilities
in Texas and across the country have
begun announcing COVID-19 vaccination
requirements for their employees, medical
staff, and volunteers. Several major hospitals
and health systems in Texas, including
Baylor Scott & White Health,6 Memorial
Hermann Health System,7 and Texas
Health Resources,8 have announced in
recent weeks that COVID-19 vaccinations
will be mandatory for health care providers
and volunteers.
While COVID-19 vaccine mandates
are becoming more common, are these
mandates legally permissible? The legal
basis for mandatory vaccinations dates
back to the early 20th century, when the
U.S. Supreme Court held that it was within
a state’s power to implement laws requiring
vaccinations.9 Today, immunization requirements
in certain settings, such as schools,
are commonplace.10 Though some states
have enacted laws requiring that health
care providers be vaccinated, Texas does
not currently mandate that providers be vaccinated
against any particular disease.11
However, Texas regulations do permit
healthcare facilities to require that providers
be vaccinated – specifically, facilities
must have policies that “require covered
individuals to receive vaccines for the
vaccine preventable diseases specified
by the facility based on the level of risk
the individual presents to patients by the
individual’s routine and direct exposure to
patients.”12 Per the regulations, a facility’s
vaccination policy must “include procedures
for a covered individual to be exempt from
the required vaccines for the medical conditions
identified as contraindications or precautions,”
but other exemptions from the
vaccination requirement, such as an exemption
for “reasons of conscience, including a
religious belief,” are discretionary.
In May 2021, the U.S. Equal Employment
Opportunity Commission (EEOC)
issued updated guidance addressing “frequently
asked questions concerning vaccinations
in the employment context” related
to COVID-19.13 The EEOC confirmed that
federal equal employment opportunity laws
do not restrict an employer from requiring
COVID-19 vaccination for members of its
workforce who are physically present at
the employer’s facilities, provided that the
mandate does not violate the Americans
with Disabilities Act (ADA) or Title VII of the
Civil Rights Act of 1964. The EEOC guidance
20 DALLAS MEDICAL JOURNAL • October 2021
noted that “in some circumstances,
Title VII and the ADA require an employer
to provide reasonable accommodations for
employees who, because of a disability or
a sincerely held religious belief, practice,
or observance, do not get vaccinated for
COVID-19” with the exception of instances
in which providing such accommodations
would create an “undue hardship” on the
employer’s business.14 Additionally, the
EEOC advised that employers are permitted
to offer employees information regarding
vaccinations, and in certain cases may
even offer incentives to employees for
receiving the COVID-19 vaccine.
The EEOC guidance specifically declined
to discuss the legal implications of the
emergency use authorization (EUA) status
of the three current COVID-19 vaccines.
However, the U.S. Justice Department’s
Office of Legal Counsel published an
opinion on July 6 regarding the legality of
vaccination mandates involving vaccines
that are subject to EUAs rather than fully
approved by the FDA.15 Specifically, the
opinion explored whether an employer’s
vaccination mandate would violate the
FDA’s requirement that recipients of the
current COVID-19 vaccines be informed
that “it is your choice to receive or not
receive the vaccine.” The Office of Legal
Counsel concluded that this notice requirement
did not bar entities (either public or
private) from requiring vaccinations, “even
when the only vaccines available are those
authorized under EUAs.”
With many health systems only recently
instituting COVID-19 vaccination requirements,
case law addressing the legality
of these mandates is just beginning
to emerge. In June 2021, the federal
court for the Southern District of Texas
dismissed one of the first claims attacking
COVID-19 vaccine mandates in
the workplace.16 Houston’s Methodist
Hospital System was an early adopter of a
COVID-19 vaccination mandate, first requiring
vaccination by employees beginning in
April 2021. A group of employees brought
a lawsuit against Houston Methodist,
claiming that the hospital’s employees
were illegally being made to be “human
guinea pigs” for the “experimental and
dangerous” COVID-19 vaccines. U.S.
District Judge Lynn Hughes dismissed the
case, noting that the employees did not
meet the basic requirements for a wrongful
termination claim under Texas law. Judge
Hughes also rejected the employees’
public policy-based arguments, including
the employees’ contention that mandates
for vaccinations that do not have full FDA
approval were unlawful and described the
employees’ allegation that the COVID-19
vaccine mandate was akin to medical experimentation
in Nazi concentration camps
as “reprehensible.” The court acknowledged
the hospital’s interest in keeping its
“staff, patients, and their families safer”
and that Houston Methodist was “trying to
do their business of saving lives without
giving the patients the COVID-19 virus.”
With more workplace COVID-19 vaccination
requirements being announced, it is
likely that more legal challenges will follow.
And, while guidance from the EEOC and Justice
Department suggests these mandates
are legally permissible, local and state
governments may seek to create barriers
to implementation of COVID-19 vaccination
requirements by employers. DMJ
This article is educational in nature and
is not intended as legal advice. Always
consult your legal counsel with specific legal
matters. Christie Davis is an attorney with
Hall, Render, Killian, Heath & Lyman, P.C.,
the largest health care-focused law firm in
the country.
References:
1. Natl. Academy for State Health Policy, “State Lawmakers Submit
Bills to Ban COVID-19 Vaccine Mandates and Passports,”
https://www.nashp.org/state-lawmakers-submit-bills-to-banemployer
vaccine-mandates/.
2. Executive Order GA 38, “Relating to the continued response
to the COVID-19 disaster,” https://gov.texas.gov/uploads/files/
press/EO-GA-38_continued_response_to_the_COVID-19_disaster_
IMAGE_07-29-2021.pdf.
3. Tex. HB 4272, p. 14, https://capitol.texas.gov/tlodocs/87R/
senateamend/pdf/HB04272A.pdf#navpanes=0.
4. Cal. Dept. of Public Health, “State Public Health Officer Order
of August 5, 2021,” https://www.cdph.ca.gov/Programs/CID/
DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-
Health-Care-Worker-Vaccine-Requirement.aspx.
5. Dept. of Veterans Affairs, Press Release, “VA mandates
COVID-19 vaccines among its medical employees including VHA
facilities staff,” https://www.va.gov/opa/pressrel/pressrelease.
cfm?id=5696.
6. “Baylor Scott & White says all employees and providers must
be vaccinated by Oct. 1,” https://www.wfaa.com/article/news/
local/baylor-scott-white-all-employees-providers-must-be-vaccinated
oct-1/287-0644d862-efd1-4174-9e71-65a2d376c6f2.
7. Press Release, “Memorial Hermann Announces Mandatory
COVID-19 Vaccination for its Workforce,” https://www.memorialhermann.
org/about-us/newsroom/press-releases/mandatorycovid
19-vaccination-for-workforce.
8. Press Release, “Texas Health Resources Initiates Mandatory
COVID-19 Vaccine Policy,” https://www.texashealth.org/
Newsroom/News-Releases/2021/System-Initiates-Mandatory-
COVID-19-Vaccine-Policy.
9. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
10. Natl. Conference of State Legislatures, “States with Religious
and Philosophical Exemptions from School Immunization
Requirements,” https://www.ncsl.org/research/health/schoolimmunization
exemption-state-laws.aspx.
11. Centers for Disease Control & Prevention, “Vaccination
Laws,” https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.
html.
12. 25 Tex. Admin. Code § 1.702.
13. EEOC, Press Release, “EEOC Issues Updated COVID-19
Technical Assistance,” https://www.eeoc.gov/newsroom/eeocissues
updated-covid-19-technical-assistance.
14. EEOC, “What You Should Know About COVID-19 and the
ADA, the Rehabilitation Act, and Other EEO Laws,” https://www.
eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation
act-and-other-eeo-laws.
15. U.S. Justice Dept., Office of Legal Counsel, “Whether
Section 564 of the Food, Drug, and Cosmetic Act Prohibits
Entities from Requiring the Use of a Vaccine Subject to an
Emergency Use Authorization,” http://cdn.cnn.com/cnn/2021/
images/07/26/dojvax.pdf.
16. Order on Dismissal, Bridges v. Houston Methodist Hospital,
H-21-1774, Southern District of Tex. (2021).