: ‘They don’t want the controversy’ Why a court ruling on employers requiring COVID-19 vaccinations may not unleash more mandates

A Texas federal judge on Saturday upheld a Houston hospital system’s mandatory COVID-19 vaccination policy for staff, in a decision that could offer clarity on the legal question of whether companies can require the shot.

But don’t expect the ruling to open the floodgates on more employers requiring COVID-19 vaccinations, experts said.

At a time when many bosses are already reluctant to force the issue, the court decision might nudge more healthcare providers into requiring the COVID-19 vaccination, they said. But that could be it.

“A lot of employers have decided they don’t want the controversy,” said Kevin Troutman, a partner at Fisher Phillips representing management in employment law cases.

In the Texas case, more than 100 Houston Methodist Hospital workers refused to comply with the approximately 26,000-employee hospital system’s June 7 deadline to get vaccinated.

They sued to block the policy, saying they were being coerced to be “human guinea pigs” as a condition of their employment. The hospital suspended 178 workers who did not get vaccinated. In court papers, the hospital system said staffers who still weren’t vaccinated after a 14-day unpaid suspension could lose their jobs.

The high-stakes lawsuit and hospital disciplinary action brought national media attention. So did the walk-out protests from some workers.

The litigation unfolded as vaccine hesitancy remains a sticking point in the country’s vaccination effort. The percentage of people who say they will “definitely not” get the shot has been stuck between 13% -15% from December to May, according to an ongoing poll from the Kaiser Family Foundation.

As of Monday, 54.4% of America’s adult population was fully vaccinated, said the U.S. Centers for Disease Control and Prevention.

Against that backdrop, Southern District of Texas Judge Lynn Hughes determined the hospital system’s rules didn’t amount to coercion. If workers didn’t like the policy, they could leave, Hughes said.

Employers have the right to attach all kinds of rules and expectations in exchange for a paycheck, vaccine-related and otherwise, according to the judge. Plaintiffs filed a formal appeal notice on Monday.

There are several pending lawsuits on workplace COVID-19 vaccination rules, but Hughes’ decision was the first known ruling on the subject, according Troutman. The U.S. Equal Employment Opportunity Commissionhas previously said companies can mandate vaccination for in-person job returns.

When Fisher Phillips polled employers last month on whether they were requiring vaccines, 83% of the more than 600 surveyed employers said they weren’t doing it or weren’t thinking about going down that road, up from 64% in January. 13% were unsure what to do, down from 27% in January, the poll said.

The court’s ruling upholding a mandatory vaccine policy may tip some of those unsure employers into requiring vaccination, Troutman said — but not many outside that camp.

For Troutman, the decision illustrated that when push comes to shove, employers may have a good chance arguing their COVID-19 vaccine requirements stand up in court. But requiring vaccines can generate bad blood with some staff and headline-grabbing lawsuits that can be a distraction from business, Troutman said.

“Look at the all the attention, all the distractions. You don’t want that kind of distraction if you can maintain a safe workplace without a mandate,” he said, adding, “It’s a fight you may not want, because you still may walk away with a few bumps and bruises.”

But it might be different for healthcare workers

Across all industries, the court decision may not prompt more vaccination mandates, said Dr. Jeff Levin-Scherz, managing director at the human resources consulting firm Willis Towers Watson.

But more healthcare providers may require staff vaccination now that they can point to a court ruling, said Levin-Scherz, who advises clients on return-to-office plans.

Hospitals and other health care facilities are places where patients may be immuno-suppressed, he noted. “Within health care there are many patients who might not be protected even if they are vaccinated,” Levin-Scherz said. “This is not the case in other settings.”

Even before the ruling, more healthcare providers were requiring the shot.
In a survey of 660 employers with 5.3 million workers conducted May 18 through May 29 by Willis Towers Watson WLTW, 3% said they were now requiring vaccination and 15% were considering the idea.

Flexible scheduling and paid time off to get the vaccine were more common responses among employers, said the survey data, slated for release on Tuesday. The same survey showed healthcare employers thinking a lot harder about vaccine requirements. Three percent of polled healthcare employers were currently demanding vaccination, but 29% were planning or weighing mandates, the survey found.

A day before the Texas ruling, NewYork-Presbyterian announced a Sept. 1 deadline for its staff to receive at least the first dose. The hospital system is almost double the size of Houston Methodist, with more than 48,000 employees and affiliated doctors. “Please note that compliance — either by vaccination or exemption — will be required for your continued employment,” the announcement said.

Dr. Jean Moore, director of the Center for Health Workforce Studies, based in the State University of New York, Albany’s School of Public Health, said it still remains to be seen how prevalent COVID-19 vaccination requirements will be in the healthcare sector.

Hospitals need to weigh pending appeals and worker attitudes, she said. Still, Moore thinks mandates are the right move for this line of work. Though hospitals might not want to force the issue, she said, “the safety of other patients and workers are at stake.”

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