Robbins: Can your boss order that you be shot?
Can your boss order that you be shot?
Um … yep. So it seems.
At least that’s what the Southern District (federal) Court of Texas says.
No. No! No!! The title of this column notwithstanding, and this being Texas and all, this is most emphatically not another discourse revolving (revolvering?) around the Second Amendment. Instead, it’s about health — yours, mine, and the public’s — and how far an individual’s rights reach when stacked up against what has proved to be a wily and deadly virus.
What the brouhaha is all about is this …
Houston Methodist Hospital suspended 178 workers for refusing to roll up their sleeves. OK, there’s a wee bit more to it. Not only did they refuse to roll their sleeves up but they failed to do so to avoid a jab, a COVID-19 vaccine jab to be precise. The hospital administration said something akin to “Well, if all y’all don’t take the jab, then you can cool your jets awhile.” You can even, the judge warned, be fired. What was at stake, the hospital said, was the health and welfare of the staff, the patients, and their families.
One hundred seventeen of them sued.
Sparing no hysterics, the lawsuit claimed that the hospital was “forcing its employees to be human guinea pigs as a condition for continued employment.” In issuing the opinion of the court, Judge Lynn Hughes, seized on that particular gem, saying the lawsuit was written in a “press release style.”
The lawsuit devoted much of its attention to allegations that the COVID-19 vaccines were “experimental and dangerous.” The judge was, however, having none of it, stating that the claim was “false” and “irrelevant” to the litigation.
Singling out a particular worker, one who had been a nurse at Houston Methodist for seven years, the judge noted that she had every right to refuse the vaccine. However, the hospital had every right to require her to have one as a condition of her employment. “If she refuses,” he said, “she will simply need to work somewhere else.”
But Judge Hughes wasn’t done. Employers may impose consequences for noncompliance on all sorts of things, he said. Conditions of employment, he observed, extend far beyond the current bugaboo of vaccination. Warming to his subject, the judge went on. “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration.That is all part of the bargain.”
In part, the plaintiffs based their claim on the Food and Drug Administration’s emergency use authorization of the vaccines. Under the controlling statute, they asserted, the workers had the right to refuse to take the jab. The judge, though, said they had it wrong because the particular provisions they relied upon did not give them the right to sue. Besides, Hughes said, the Equal Employment Opportunity Commission has said employers can require vaccination.
Presumably while waggling a finger in the air, the plaintiffs’ lawyer declaimed that: “As a thank you for their service and sacrifice, Methodist Hospital awards them a pink slip and sentences them to bankruptcy.” Promising appeal all the way up to the Supreme Court, he added, “This is just one battle in a larger war to protect the rights of employees …”
Understandably, the hospital had a different take, saying it was “pleased and reassured” by the judge’s ruling.
This case is, not surprisingly, only the first in the culture war, which like a Pac Man has gobbled up what used to just be basic science. Like bumper cars stacked up at a midway, other similar suits are pending and promise to spark controversy.
Can your employer force you to be shot? For now, at least, the answer seems to be yes. But the barn door that is left open is this: Is a hospital different than say a garden center? While there seems a to be a clear nexus between vaccination and laying hands on sick people, is the argument as compelling or as vital in a less critical setting? Time, presumably, will tell. And by then, God willing, the tempest of this horrible pandemic will have passed into remembrance, reflection and regret.