Texas nurse Jennifer Bridges plans to go to work on June 7, like it’s any other day. The only difference is, when she gets there she expects to be fired.
That day is the deadline her employer, Houston Methodist hospital, has given its staff to get the Covid-19 vaccine, something Bridges, 39, doesn’t want to do.
“There is just not enough research out yet,” she said in an interview. “To be a fully approved vaccination it takes years of trials and research. And this thing has been out less than a year.”
In an April 17 Facebook post, Bridges outlined Houston Methodist’s plan and asked her followers to sign a petition supporting her. Ninety-four comments later, she’d been cheered on—and encouraged to get a lawyer.
“You have a good case of a lawsuit. I believe that it’s illegal to mandate a vaccine when it is under Emergency Use Authorization from the FDA,” one friend wrote. Said another, “This is BS and a lawsuit waiting to happen.”
Not So Fast
“I am not aware of any court or agency at the state or federal level that has held that the Emergency Use Authorization language prohibits an employer from enforcing a vaccine mandate,” said attorney Erik Eisenmann, who specializes in employment law.
In fact, most non-union companies have a good deal of latitude to impose vaccination requirements, because in almost all U.S. states employment is presumed to be “at will.”
Nicholas Bagley, a law professor at the University of Michigan, has seen the social media chatter about employer mandates and the EUA.
“The argument looks good for about a half-second, and then, as soon as you start digging, it starts to look much, much worse,” Bagley said, though he cautioned that the politically charged atmosphere around vaccination could produce some surprising legal results.
“I would expect that we see some case law fairly quickly,” he said. “But once political sympathies are engaged, it just becomes a whole lot harder to predict.”
As for the science, the Food and Drug Administration has authorized the use of three Covid-19 vaccines in the U.S. on an emergency basis. Each of the shots was studied in clinical trials involving tens of thousands of patients and found to be safe and highly effective at preventing severe illness and death.
Still, in some corners of the internet, the EUA is having a moment. Once limited to discussions by drug policy wonks and health care officials, the intricacies of the EUA are now hotly debated by armchair lawyers in social media forums as the crux of claims that employers can’t make workers get the shot.
In fact, the Americans With Disabilities Act does allow for medical exemptions to a vaccine mandate, and Title VII of the 1964 Civil Rights Act gives workers the right to seek an exception based on religious beliefs.
That doesn’t tie employers’ hands.