On June 12, 2021, a federal court in Texas, applying the state’s at-will employment laws, ruled that a hospital could require its employees to be vaccinated against COVID-19.  At trial, the employees raised two causes of action.

First, the employees asserted that if they were terminated for refusing the vaccine, it would constitute wrongful termination under Texas’s exception to at-will employment.  This exception holds that wrongful termination occurs if the employee is terminated for refusing to commit an illegal act.  Since getting a COVID-19 vaccine is not an illegal act, there could be no wrongful termination.

Second, the employees contended that termination for refusing the vaccine would also constitute wrongful termination under a public policy exception to at-will employment.  Further, the employees argued that the mandate was against public policy because it violated principles established in the Nuremberg Code, an ethics code issued because of Nazi human experimentation.  The Judge condemned the plaintiff’s aspersions.

Unlike Texas, Ohio employers can be liable under a public-policy exception to at-will employment known as Greeley.  An employee must prove four elements to win a Greeley case:

“(1) a clear public policy manifested in state or federal law;

(2) dismissal . . . [that] would jeopardize the public policy;

(3) dismissal motivated by conduct related to the public policy; and

(4) lack of an overriding business justification by the employer for the dismissal.”

Hale v. Mercy Health Partners, 20 F.Supp.3d 620, 637 (S.D. Ohio 2014).  It is unlikely based on current law that mandating COVID-19 vaccinations violates public policy in Ohio.  But that is only under current law.  As of this newsletter, pending Ohio legislation would ban vaccine requirements not just for COVID-19, but all vaccines.

The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP, regularly assist private and public employers with federal and state law passed in response to the COVID-19 pandemic.  If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.