United States: Louisiana employers may be able to fire unvaccinated workers under employment-at-will doctrine
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In a pair of related decisions in Hayes v University Health Shreveport, LLC, and Nelson v. Ochsner Lafayette General, the Louisiana Supreme Court ruled on January 7, 2022 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 vaccinated or face disciplinary action, including use mandatory time off 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 only applies to governmental actors and 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 went into effect, in part, Jan. 10, 2022. , and the Centers for Medicare and Medicaid Services Vaccination Mandate, which requires that some health care workers be fully vaccinated against COVID-19 unless they qualify for an exemption medical or religious.
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.
Ogletree Deakins will continue to monitor and report on developments regarding the COVID-19 pandemic and will post updates to the company’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available through the firm’s webinar and podcast programs.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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