Louisiana At-Will Employers May Be Able to Discharge Unvaccinated Workers

By Andrew P. Burnside and Claire R. Pitre © Ogletree Deakins January 31, 2022
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COVID-19 vaccine record

​In a pair of related rulings in Hayes v. University Health Shreveport, LLC, and Nelson v. Ochsner Lafayette General, the Supreme Court of Louisiana held on Jan. 7, that private Louisiana employers may mandate COVID-19 vaccines for their employees. 

"[T]his court finds Employer is entitled to terminate Employees for failure to comply with the vaccine mandate," the court said in a unanimous decision written by Chief Justice John Weimer, finding "no exception to [Louisiana's] at-will employment doctrine."

In August 2021, the employer, a health care system, informed its employees statewide that they would have roughly two months to be fully vaccinated or they could face disciplinary action including mandatory use of leave time and eventual termination of employment. In response, roughly 75 employees in the Lafayette and Shreveport areas filed two separate lawsuits arguing that the employer's ability to dismiss them as at-will employees was tempered by the Louisiana Medical Consent Law, La. R.S. 40:1159.1, et seq., which governs the right of an adult to refuse medical treatment, and Louisiana Constitution art. I, § 5, which guarantees a right to privacy.

The Supreme Court of Louisiana rejected both arguments. The court held that the Louisiana Medical Consent Law applies only to the relationship between a health care provider and a patient—not to an employment relationship between a private employer and employee. Regarding the employees' right-to-privacy claim under La. Const. art. I, § 5, the supreme court held that art. I, § 5 only applies to governmental actors—not private employers.

The Supreme Court of Louisiana's holding does not appear to affect an employee's right to seek exemption from the mandate under state or federal antidiscrimination laws or assert a claim for violation of such laws in connection with required vaccination.

Notably, the decisions were issued on the same day that the U.S. Supreme Court heard oral argument 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the Occupational Safety and Health Administration's (OSHA) emergency temporary standard (ETS) (which has since been withdrawn) and the Centers for Medicare and Medicaid Services' vaccination mandate, which requires certain health care workers to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

There are plenty of uncertainties for Louisiana employers seeking to manage their risk with COVID-19 in the Louisiana workplace, but exposure for a wrongful termination lawsuit under certain Louisiana laws will not be one of them. Louisiana employers that are mandating vaccination may want to monitor and manage risk under the Louisiana Employment Discrimination Law, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act.

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

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