Kentucky Hospital Employees File Suit over Workplace Vaccine Mandate

By Todd B. Logsdon and Ashby Angell © Fisher Phillips September 17, 2021
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[Editor's note: A federal district court has upheld the employer's vaccine requirement.]

Coming on the heels of Kentucky's record-high number of COVID-19 infections, dozens of employees of St. Elizabeth Healthcare just filed a lawsuit in the U.S. District Court in Covington against the hospital in response to its announced workplace vaccine mandate.

The Sept. 3 lawsuit alleges the employees have been coerced into being vaccinated. All previous efforts by workers across the country to overturn an employer vaccine mandate through litigation have failed, but what do employers need to know about this latest attempt?

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State of Emergency in Kentucky

Kentucky's COVID-19 infection rates continue to rise rapidly, and the commonwealth recently reached a record-high number of infections in early September. In August, Kentucky Gov. Andy Beshear called on Kentucky's private sector employers to require their employees to get vaccinated, absent any applicable religious or medical exemption. Notably, even the EEOC has indicated that employers may mandate COVID-19 vaccines at their workplaces. 

In light of these developments, multiple hospital systems in Kentucky, including the St. Elizabeth health care system in Northern Kentucky as well as hospitals in Lexington and Louisville, announced in early August 2021 that they would require their employees to be vaccinated against COVID-19. St. Elizabeth's announcement indicated there would be exceptions to the requirement if employees qualified for a religious or medical exemption. In addition, the hospital agreed to allow their staff until Sept. 15 to get their first shot. These mandates have been endorsed by a number of state health care associations, including the Kentucky Hospital Association, Kentucky Nurses Association, and the Kentucky Medical Association.

Hospital Employees File Suit to Block Mandate

Regardless of the facts laid out above, the plaintiffs allege mandatory vaccinations are "a fraud upon the entire American public" and claim a vaccine mandate requires them to "participate in a medical experiment." Indeed, the 23-count complaint alleges, among other things, a claim of "fraud in the concealment," which alleges St. Elizabeth's was "fully aware and/or recklessly ignored the inaccuracy of both the internal and external reporting regarding COVID-19" in order to fit the hospital's "intended narrative" regarding the vaccine.

similar lawsuit filed by Methodist Hospital employees in Texas was dismissed by the court in June. In that case, employees alleged they were being forced to participate in a "human experiment" by being required to be vaccinated against COVID-19. The court determined the plaintiffs were free to refuse the vaccine but would simply have to find work elsewhere if they did.

Vaccine Mandates Gain Popularity

As vaccines were rolled out in late 2020 and early 2021, employers seemed hesitant to impose vaccine mandates. A combination of factors over the past two months, including the high transmissibility of the delta variant, the full approval of the Pfizer-BioNTech vaccine, and the impending mandate-or-test rule from the Occupational Safety and Health Administration, will no doubt lead more employers to implement a mandate. In addition, at this stage, many employers may find that those employees who were voluntarily going to be vaccinated have already done so, leaving a mandate a final option to get remaining employees vaccinated.

According to the Fisher Phillips COVID-19 Employment Litigation Tracker, employees have filed 24 lawsuits against employers across the country challenging vaccine mandates. To date, none of them have been successful. However, just because employers have enjoyed universal success in rolling out vaccine mandates doesn't mean that your organization is without risk if you pursue such a course of action.

Most significantly, you need to ensure you have a robust religious and medical accommodation system in place.

Todd B. Logsdon and Ashby Angell are attorneys with Fisher Phillips in Louisville, Ky. © 2021 Fisher Phillips. All rights reserved. Reposted with permission.

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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