Louisiana at-will employers may be able to fire unvaccinated workers


In a pair of related decisions in Hayes v University Health Shreveport, LLCand Nelson v. Ochsner Lafayette Generalthe Louisiana Supreme Court ruled on Jan. 7 that private employers in Louisiana can mandate COVID-19 vaccines for their employees.

“[T]its court finds that the employer has the right to terminate the employees for non-compliance with the vaccination mandate,” the court said in a unanimous decision written by Chief Justice John Weimer, finding “no exception to [Louisiana’s] doctrine of employment at will.”

In August 2021, the employer, a health care system, advised its statewide employees that they would have approximately two months to be fully immunized or face disciplinary action, including dismissal. mandatory use of leave time and possible dismissal. In response, approximately 75 employees in the Lafayette and Shreveport areas filed two separate lawsuits arguing that the employer’s ability to terminate them as employees at will was tempered by Louisiana medical consent law, La. RS 40: 1159.1, et seq., which governs an adult’s right to refuse medical treatment, and art. I, § 5, which guarantees a right to privacy.

The Louisiana Supreme Court rejected both arguments. The court held that Louisiana’s medical consent law applied only to the relationship between a health care provider and a patient, not to an employment relationship between a private employer and an employee. With respect to the employee’s right to privacy claim under La. Const. art. I, § 5, the Supreme Court held that s. I, § 5 applies only to governmental actors, not to private employers.

The Louisiana Supreme Court’s decision does not appear to affect an employee’s right to seek an exemption from warrant under state or federal anti-discrimination laws or to assert a claim of violation of such laws in connection with the required vaccination.

Notably, the rulings were released the same day the U.S. Supreme Court heard oral arguments regarding the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) (which has since been withdrawn). and the Centers for Medicare and Medicaid Services. vaccination mandate, which requires certain healthcare workers to be fully vaccinated against COVID-19, unless they qualify for a medical or religious exemption.

There are many uncertainties for Louisiana employers looking to manage their risk with COVID-19 in the Louisiana workplace, but the exposure for a wrongful termination lawsuit under certain Louisiana laws will not be part of it. Louisiana employers who mandate vaccination may want to monitor and manage risks under the Louisiana Employment Discrimination Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities.

Andrew P. Burnside and Claire R. Pitre are attorneys at Ogletree Deakins in New Orleans. © 2022 Ogletree Deakins. All rights reserved. Republished with permission.

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