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Former state AG: ‘Awful lot of precedent’ in the US for requiring vaccination

Medical workers and pedestrians cross an intersection outside of the Houston Methodist Hospital on June 9, 2021, in Houston, Texas. Houston Methodist Hospital suspended 178 employees without pay for 14 days for their refusal to comply with its COVID-19 vaccine requirement. (Photo by Brandon Bell/Getty Images)

A federal judge dismissed a lawsuit brought by employees of Houston Methodist Hospital, who said that the hospital had no right to force them to get the COVID-19 vaccination.

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“There’s just an awful lot of precedent in our country for the idea that to protect public health and safety, you can require school children to be vaccinated before you go to school. You can require adults to be vaccinated to go back to work,” explained Rob McKenna, former state attorney general.

“The law goes all the way back to 1905 when a man named Jacobson challenged mandatory smallpox vaccination in Lowell, Massachusetts, that had been ordered by the local health board, and he lost because — and this is very interesting because if you read the opinion of the majority, it sounds very similar to the opinion issued by the district court judge in Texas this week,” McKenna added.

The reasons given in the Jacobson case were that, one, there’s a public health reason to require vaccination. Two, the vaccine had been proven to be safe, or safe enough. And three, Jacobson failed to demonstrate that there was a special circumstance that would justify him not having to be vaccinated.

“So he had to pay the $5 fine,” McKenna said. “They were fining people for not being vaccinated. In Houston, the court said, look, I don’t agree that this vaccine should be considered experimental. The vaccines are being dispensed under an emergency use authorization from the FDA, but hundreds of millions of people have received them. And so he said, look, just as the Jacobson Court did in 1905, he said, this is safe.”

“Number two, in this case, it’s an employer and the employer is a hospital. And so there’s a strong public policy reason for hospitals to want their employees to be vaccinated when they’re going to be around patients,” McKenna continued. “So he threw the case out. They’re going to appeal it, but I think they’ll lose because not only the law, but the public policy rationale here is really strong.”

While this could have to do with the nature of the lead plaintiff’s job, who was a nurse at a hospital, McKenna thinks it would stand no matter what.

“The federal government has issued guidance for all employers stating that employers may require vaccination as a condition of employment,” he said. “Now, they’re not forcing people, like tying them and vaccinating them, but you have to make a choice if the employer imposes that rule. You have to decide whether to get vaccinated or to leave the job.”

The exceptions to a vaccine requirement are if the person has a religious exemption or disability that would prevent them from being vaccinated.

“In both cases, if you’re able to successfully persuade the employer or court that you have a disability or you deserve a religious exemption, the employer has to provide an accommodation for you as an employee,” McKenna noted. “But the employee has to go along with the accommodation. So the accommodation might be a change in job duties, you’re not around patients or customers. It may mean you have to keep wearing a mask when others don’t. You have to be socially distanced.”

“So even in the cases involving those two exceptions, where an accommodation must be provided for the employee, it imposes a burden on the employee as well, which is, I think, pretty reasonable,” he said.

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This also would apply to employers requiring masks as a condition of employment.

“Employers are allowed to impose requirements they believe are reasonably necessary to protect other employees, to protect customers, or in the case of a hospital, to protect patients,” McKenna said. “I think that all those things would be upheld given how dangerous this virus is, and how contagious it is.”

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