The dismissal of a lawsuit by Texas hospital workers who challenged their employer’s Covid-19 vaccination requirement could embolden other companies to mandate shots for their workers, experts said Monday.
But it remains to be seen whether they will.
Few companies are eager to require vaccinations for returning workers “primarily because it’s become a political issue rather than a medical issue,” said Andrew Challenger, vice president at the Chicago-based executive outplacement and coaching firm Challenger, Gray & Christmas.
“In our most recent survey, just 3 percent anticipated mandating vaccinations for workers returning to the office," Challenger said. "Most companies want to know that their workers are vaccinated, but they’re taking a more carrot than stick approach, offering incentives like extra vacation days. Or they’re letting workers who have been vaccinated not wear masks in the office."
That said, there is “plenty of precedent” for hospitals in particular to require that workers be vaccinated, Challenger said. “Flu shots, for example,” he said.
NBC News legal analyst Danny Cevallos agreed.
“This ruling is not a surprise,” Cevallos said of U.S. District Judge Lynn Hughes’ ruling, which was announced Saturday and which upheld Houston Methodist Hospital’s requirement that all staffers be vaccinated. “This is pretty settled law.”
In May, the U.S. Equal Employment Opportunity Commission “came out with guidance that said private employers can require workers to be vaccinated, and this ruling essentially affirms that,” Cevallos said.
So does this mean all companies can now go ahead and mandate vaccines for all workers?
“They could already,” Cevallos said. “But there are exceptions, of course, like if a person has a disability and can’t have a vaccination, or if there is a case of discrimination. For example, a company can’t require just the Black employees to get the vaccine.”
Companies have to make what’s called a reasonable accommodation for people who have legitimate medical reasons for not getting the vaccine, “and since the start of the pandemic there have been lots of debate about what constitutes reasonable accommodation,” Cevallos said.
In the case of media, finance and other white-collar companies, what the pandemic has shown is that many workers can work from home, he said.
“So a reasonable accommodation here would be requiring workers who want to return to the office to get vaccinated and allowing those who don’t want to get vaccinated to work from home,” Cevallos said. “But hospital settings are different. You can’t telecommute to your nursing job at a hospital.”
The lawsuit against Houston Methodist Hospital was filed by Jennifer Bridges, a nurse, and 116 other hospital employees. They argued, among other things, that the vaccines currently available in the United States were experimental and dangerous.
Hughes disagreed, saying the plaintiffs “misrepresented the facts” of vaccination by claiming they were being subjected to forced medical experimentation because the Covid-19 vaccines had received emergency Food and Drug Administration authorization but not full approval.
“The hospital’s employees are not participants in a human trial,” Hughes wrote. “Methodist is 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 safer.”
Hughes also blasted as “reprehensible” the lawsuit’s comparison of the vaccine requirement to medical experimentation during the Holocaust.
The judge also said the plaintiffs were not being coerced into getting the vaccine.
“Bridges can freely choose to accept or refuse a Covid-19 vaccine, however if she refuses, she will simply need to work somewhere else,” the judge said.
While Bridges et al. have vowed to appeal, Cevallos said, they’re unlikely to overturn Hughes’ ruling. “The plaintiffs here have made some graspy legal arguments,” he said.
Dr. Sadiya Khan, an epidemiologist and assistant professor of preventive medicine at Northwestern University’s Feinberg School of Medicine, said requiring health care workers to get a Covid-19 vaccine is a no-brainer.
“I believe health care organizations have a responsibility to protect immunocompromised and vulnerable patients,” Khan said. “Similar to mandates for flu vaccine, I agree with mandatory Covid-19 vaccination in a health care setting.”
But health care workers are not immune to the various conspiracy theories and false claims that have cast doubt on the safety and effectiveness of the vaccines, Khan said.
“We continue to have a long way to go in terms of understanding vaccine hesitancy, especially among health care workers who witnessed firsthand the burden of Covid-19,” Khan said. “I am not surprised by concern by anyone about a new vaccine, but I strongly believe the available data, from the trials and based on the 7 million Americans who have gotten at least 1 dose of the vaccine, provide strong and reassuring data of its safety and efficacy.”