The Houston Methodist Hospital lawsuit decision in June left healthcare workers across the country shellshocked. Arguing that the hospital’s COVID-19 vaccine mandate violates the basic human rights outlined in the Nuremberg Code, Houston Methodist employees’ valiant attempt to halt mandates prior to the drugs’ FDA approval was dismissed by U.S. District Judge Lynn Hughes. The employees were then unceremoniously let go by the hospital.
Regardless of the ruling, Louisiana institutions were hesitant to establish mandates until the U.S. Department of Justice issued a memo on July 6th that stated employers could require COVID-19 vaccination prior to full FDA approval. The DOJ guidance dismissed the federal law granting consumers a “right to refuse” an experimental drug and opened the floodgates on employee mandates in Louisiana.
Late last week, news broke of a pending lawsuit from a group of Lafayette Ochsner employees. The employees had withstood months of employer pressure, incentives, and coercion to be vaccinated. Today, employees of Ochsner and Our Lady of Lourdes threw down the gauntlet with the help of their attorneys, Jimmy Faircloth Jr., G. Shelley Maturin III, and Angela Bryson, stating in a letter to Ochsner CEO Patrick Gandy and CMO Dr Amanda Logue that:
“If the mandate is not recalled before close of business on September 17, 2021, we will seek an injunction and, in due course, move to recover all damages caused by this misguided venture. We are hopeful that the following presentation of Louisiana law will produce a different result.”
With incredible detail, Faircloth et al outline the argument that Ochsner’s mandate violates constitutional protections and state statute while dismantling the employer at will argument. Citing La. Const. art. I, § 5., Right to Privacy, and a little known state statute, La. R.S. 40:1159.1 et seq, Right of adult to refuse treatment as to his own person not abridged, the attorneys build a well-cited case that an employee has an affirmative right to refuse medical treatment.
It is hard to believe that Ochsner is unaware of the failings of the COVID-19 vaccines currently on the market, but the letter specifically points out the futility of the mandate due to undeniable product limitations:
“Further, medical science now overwhelmingly demonstrates that vaccines do not prevent the spread of virus, as originally hoped when the President assured the public, “If you get vaccinated, you don’t have to wear the mask.” As has been widely reported, the primary benefit of the vaccines is to reduce the risk of severe symptoms. Although perhaps true, that purpose will provide no defense to these claims.”
I was hopeful that the Lafayette Ochsner employees would have a more substantive argument than the Houston Methodist Hospital employees. Mr Faircloth and associates did not disappoint.
University students and staff across the state should follow suit in utilizing these arguments for the untenable testing and masking requirements to be on campus. La. R.S. 40:1159.1 et seq is not specific to vaccination, rather it encompasses the right to refuse all medical treatment.