In May of 2021, over 100 employees filed suit against Houston Methodist Hospital over a requirement that they obtain a COVID vaccination. They argued that the mandate violated Texas law which prohibited employers from terminating employees if they refused to engage in illegal conduct. At the time the lawsuit was filed, the Pfizer and Moderna COVID-19 vaccination shots had not been fully authorized by the FDA. Forcing them to take non-authorized drugs, they argue, amounted to requiring them to perform an illegal act under the Texas Sabine Pilot statute.
The federal district court dismissed the lawsuit ruling that the employees were not forced and could choose either to vaccinate or seek employment elsewhere.
On appeal, the former employees are requesting the 5th Circuit to certify a question for the Texas Supreme Court as to whether there should be an exception to the employment at will doctrine which would prohibit employers from terminating individuals who refuse to take "experimental" drugs in case similar circumstances arise in future health care pandemics.
Legal counsel for the hospital pointed out, as did the 5th Circuit at oral argument, that the vaccines are no longer experimental. Furthermore, the U.S. Supreme Court recently upheld the CMS COVID-19 vaccination mandate. In addition, the hospital pointed out that the proposed exception was never submitted for the district court's consideration and furthermore, such an exception is more properly before the Texas state legislature and not the Texas Supreme Court.
"It is inconceivable that the Texas Supreme Court would create a new common-law exception," she said. "The Texas Supreme Court looks to the legislature and what they're doing in an area and the legislature has been active in considering exceptions to employment-at-will" but hasn't adopted any.