Continues the great “Broccoli Fight of 2021.”

(I acknowledge the hyperbole.  Vegetables do that to me.)

Like George H. W. Bush, I do not like broccoli.  At least one Texas federal judge seems to love it and thinks all Texas employers can make their employees eat it or lose their jobs.

The Backstory:  I published two blog posts addressing whether employers can force employees to get COVID-19 vaccinations.  You can read them here (“Eat Your Broccoli, or Else!”)(April 16, 2021) and here (“Broccoli Must be Good for You:  The Government Says So”)(June 4, 2021).  I raised the question of whether the “boss” can require workers to submit to medical procedures (in this case, COVID-19 vaccinations) to keep their jobs.  I freely acknowledged that I received the vaccine as soon as I could, but I recognized that others might make different choices.  I also acknowledged that the Equal Employment Opportunity Commission had published materials to the effect that it believed federal EEO laws permitted an employer to require vaccinations (subject to certain limitations for pregnant employees, employees with an anti-vaccine sincerely held religious view, or employees with covered disabilities).

The New Development:  On June 12, after I published my second “Broccoli Post,” Judge Lynn N. Hughes, a United States Federal Judge in Texas, dismissed a class action lawsuit brought by 117 (now former) employees of Houston Methodist Hospital who sued to stop their employer from requiring COVID-19 vaccinations.  In a short and somewhat harsh decision, Judge Hughes dismissed the lawsuit saying in effect the plaintiffs’ claims were “false” (more on that below) and that plaintiffs were not “coerced” because they could always work elsewhere if they did not want to get vaccinated.  You can read the opinion for yourself.  Bridges v. Houston Methodist Hospital (S.D. TX, June 12, 2021).

My Concerns:  So, let me say from the start that a good part of the Judge’s reasoning seems right to me.  Judge Hughes correctly cited a couple of cases addressing mandatory vaccinations, one of which the United States Supreme Court issued over 115 years ago.  Supreme Court precedent tends to be good authority with a couple of notably exceptions (the whole “Dred Scott” case – about the citizenship of Blacks – and that “Separate but Equal” thing).  At 115 years old, the Court’s mandatory vaccination decision is either “established and unquestioned for over a century” or “stale and out-of-date,” depending on whether you like it or not.

And it may be that nothing under Texas law prevents an employer from requiring employees to be vaccinated – or buying products from a particular company – or giving money to a specific politician – or from donating to a cause (whether pro-choice, pro-life, Antifa or the Proud Boys).

Saying Texas law does not prohibit such an act does not mean federal law doesn’t.  And neither addresses the policy question of whether the boss should be permitted to mandate an employee engage in off-duty acts or support causes which that boss supports, or thinks is good for you.  (That is the point behind a demand to “Eat Your Broccoli!”)

We should have a rational discussion about both the law and the policy.  As I have written previously, it is one thing for the government to say “Eat Your Broccoli” and another thing for your boss to demand it.  Should an employer be prevented for requiring these things as a condition of employment?  The libertarian in me thinks it is none of my boss’s darn business.  That there may be no restrictions on the boss requiring workers to submit to a specific medical procedure (safe or not) gives me discomfort.  Should an employer anywhere be allowed to require workers be sterilized so they do not lose time for child-care or parent teacher meetings?  I know where I stand.

My Rant and Rave:  In my opinion, Judge Hughes did not sufficiently consider the regulations and implementing legislation of the Emergency Use Authorization, the procedure under which these “Emergency” vaccines were approved.  The Judge also mis-stepped when she called plaintiffs’ claims about the safety of COVID-19 vaccines “false.” On a motion to dismiss, the court must accept the complaint’s well-pled allegations.  The court was obligated to accept the claim that the COVID-19 vaccines are not safe for purposes of the motion.  If the Judge had done so, the case takes on a radically different tone – in their view, the plaintiffs are being required to take an experimental, dangerous medication as a condition of employment.  If true (and that is a big “if,” I confess), that should give even the most “pro-vax” advocate pause.

I also question the court’s unfortunate suggestion that the employees were not “coerced” since they can always go to work elsewhere.  That seems out of step with current legal thinking.  (I will not even try to address the cultural gulf that may separate a Federal Judge with a lifetime appointment from a menial wage worker struggling to make ends meet on $7.25 an hour.)

Where Does that Leave Us?  I do not know if history will find Judge Hughes was right or not.  I learned long ago that if every judge was perfect, there would be no need for appellate courts.  I also recognize that Judge Hughes became a federal judge with a lifetime appointment, not me, and that says more than a little.

There should be a robust debate about the limits of what an employer can require from a worker.  We are long past the “Company Town” era when the boss controlled every aspect of a worker’s life.

The plaintiffs will appeal.  Advocacy groups will pick sides.   And other courts will issue opinions one way or another.

This debate will and should not end quickly.

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