Jun 8, 2021

Updated EEOC Guidance and New COVID-19 Litigation

COVID update

The EEOC issued updated guidance stating that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to some exceptions.  An employer must permit accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (“Title VII”).  Our prior article regarding the EEOC’s Guidance on COVID-19 Vaccinations outlines these exceptions.

With COVID-19 vaccines now widely available, lawsuits over vaccine mandates are beginning to emerge.  Most of these lawsuits target public employers or schools, such as the cases filed in California, North Carolina, and New Mexico.[1]  In late May, the first lawsuit against a private employer was filed in Texas.  In Bridges et al. v The Methodist Hospital, a group of 117 unvaccinated nonmanagerial employees from Houston Methodist Hospital (the “Hospital”) allege their employer wrongfully terminated them over an improper vaccine mandate applicable to all employees.  As alleged in the Complaint (attachment), the Hospital enacted a vaccination policy, which ultimately required the vaccination of all employees.  If an employee did not provide proof of vaccination by the deadline, the Hospital would place the employee on a two-week suspension, eventually resulting in termination if the employee did not receive the vaccination during the two-week period.

The plaintiffs allege that the Hospital wrongfully discharged them from employment under a public policy exception to the employment at-will doctrine under Texas law.  The plaintiffs also allege a violation of federal law regarding the use of products approved under the “emergency use authorization.”  See 21 U.S.C. § 360bbb-3. The federal law provides that individuals must be informed of the option to accept or refuse administration of a product covered under this law, and of the consequences of refusing administration, as well as informed of the potential risks and benefits.  Essentially, the plaintiffs assert that the mandatory vaccination policy is illegal pursuant to federal law, and so they were wrongfully discharged.  Plaintiffs are seeking declaratory and injunctive relief prohibiting enforcement of the vaccination policy.

This lawsuit will be one to watch, especially once COVID-19 vaccines receive full U.S. Food and Drug Administration approval.  Currently, it is crucial for employers to maintain compliance with CDC guidelines and EEOC guidance as both continue to be updated throughout the pandemic.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

[1] California Educators For Medical Freedom et al. v. The Los Angeles Unified School District, Case No. 21-cv-02388 (Filed in the United State District Court Central District of California on March 17, 2021); Christopher Neve v. Clarence F. Birkhead, in his individual and in his official capacity as Durnham County Sheriff, Case No. 1:2021-cv-00308 (Filed in the United States District Court Middle District of North Carolina on April 16, 2021); Isaac Legaretta et al. v. Fernando Macias, Dona Anna County Manager, et al., Case No. 2:21-cv-00179 (Filed in the United States District Court District of New Mexico on February 28, 2021).

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