: 178 Houston hospital workers were told to get vaccinated — or be fired. Now their case will be heard in federal court

“Unfortunately, a small number of individuals have decided not to put their patients first,” Dr. Marc Boom, Houston Methodist’s CEO and president, wrote in a Tuesday staff email that a spokeswoman shared with MarketWatch.

Some 24,947 Houston Methodist workers, nearly all its workforce, were fully vaccinated by Tuesday, Boom wrote. (Nearly 600 employees were granted exemptions or deferrals.)

“Houston Methodist is officially the first hospital system in the country to achieve this goal for the benefit of its patients,” he said.

The plaintiffs sued Houston Methodist late last month. Among other things, they said because the vaccines are available via emergency-use authorization from the Food and Drug Administration and, as such, they could not be forced into inoculation.

They have called them “experimental.” The plaintiffs are mostly nurses inside the hospital system. The hospital system “is forcing its employees to be human ‘guinea pigs’ as a condition for continued employment,” their lawsuit alleges.

In response, Houston Methodist says in court papers that the case should be tossed. The laws cited by plaintiffs have nothing to do with private employers, according to the hospital’s dismissal motion. The hospital system questions whether some of the plaintiffs are even employees, its filing said.

The hearing is happening against a backdrop of rising vaccination rates to fight a pandemic that has already taken 598,756 lives in the U.S.

The vaccine from J&J unit
JNJ,
-1.20%
Janssen is an adenovirus vector-based vaccine that only requires one shot. Clinical trials showed it had 72% efficacy in the U.S.

The two-shot mRNA-based vaccines made by Pfizer
PFE,
-1.49%
with German partner BioNTech SE
BNTX,
-1.60%
and Moderna
MRNA,
-1.17%
make up the majority of shots administered in the U.S., and both were about 95% effective in clinical trials.

In April, the hospital announced a mandatory COVID-19 vaccination policy. By that point, 84% of staff was already vaccinated, according to court papers. The policy set two deadlines for two groups of staff.

People in the first wave had to be fully vaccinated by April 15 unless they requested an exemption. People in the second wave had a Monday deadline unless they had an exemption. The consequence for no vaccination past that point was a suspension without pay for up to 14 days, and then firing, court papers said.

Lawyers representing the nurses and other plaintiffs did not respond to a request for comment.

Similar cases across the country

There are at least three other pending cases where workers are fighting over employer vaccination policies.

These lawsuits include a North Carolina ex-deputy sheriff and former workers in a New Mexico county detention center who say they were wrongly fired for their refusal. Los Angeles school district staffers are also suing the school system, which has said it is not requiring vaccination.

The Equal Employment Opportunity Commission, the federal government’s regulator on civil rights in the workplace, has said employers can make vaccination a requirement for in-person work.

But the regulator has been revising its guidance to workers and employers throughout the pandemic. The same day the Houston Methodist plaintiffs filed their case, the EEOC updated its guidelines to stress that it’s only talking about the civil rights laws it enforces.

Laws on what emergency use authorization allow and don’t allow are beyond its jurisdiction, the EEOC emphasized. Pfizer and BioNTech are seeking full FDA approval on its vaccine, as is Moderna.

The uncertain legal context is part of why the Houston Methodist case is worth watching, said Dorit Rubinstein Reiss, a professor at The University of California Hastings College of the Law.

“They don’t set precedent, but they could be influential in other cases, especially if they are well written and well reasoned,” she said. “Judges don’t like to make things up from scratch.”

It is moving faster to resolution because of the job firing deadlines, and when a first decision arrives amid open legal questions, Reiss said it may shape the legal debate elsewhere.

The hearing scheduled for Friday afternoon might not result in an immediate decision. But Judge Lynn Hughes, appointed to the federal bench during the Reagan administration, has already started to weigh in on the case.

Last week, the plaintiffs asked Hughes to block Houston Methodist from imposing its vaccination deadline.

Hughes denied the motion last week, writing “the public’s interest in having a hospital capable of caring for patients during a pandemic far outweighs protecting the vaccination preferences” of the plaintiffs who were “not just jeopardizing their own health; they are jeopardizing the health of doctors, nurses, support staff, patients, and their families.”

Jennifer Bridges, a nurse who worked for Houston Methodist for over 6 years, and was one of those suspended, told the Texan: “We will fight this all the way to the Supreme Court. This is wrongful termination and a violation of our rights.”