Ochsner Health temporarily stopped from firing employees over COVID vax status

 A panel of three judges in Shreveport has issued a temporary restraining order preventing Ochsner Health from firing employees in north Louisiana who have not complied with a COVID-19 vaccination requirement.  

The employees, 39 of which filed a lawsuit in the 2nd Circuit Court of Appeals, would have been dismissed Friday under a policy Ochsner enacted for all 32,000 employees in August: get vaccinated or an exemption by Oct. 29 or lose your job. The ruling from the state court of appeals came Thursday, one day before the deadline.

Small groups of Ochsner employees — 39 in Shreveport, 9 in Monroe and 48 in Lafayette — have taken the matter to separate courts, where they've argued that the mandate violates employees’ reasonable right to privacy to reject medical treatments.

A lower-court judge had previously dismissed the lawsuit from the Shreveport group. But in its ruling Thursday, the appeals court said the plaintiffs should be allowed a hearing and Ochsner may not fire or discipline employees over failing to comply with vaccine requirements in the meantime.

The ruling applies to employees at hospitals listed on the lawsuit, including Ochsner LSU Health Shreveport and Ochsner LSU Health Shreveport St. Mary. The plaintiffs are 20 registered nurses, four surgical technicians, a physician, a nurse practitioner, a respiratory therapist, a licensed practical nurse, a child life specialist and several others without listed medical credentials.

Attorney Jimmy Faircloth, who was previously executive counsel to former Gov. Bobby Jindal, has filed several lawsuits on behalf of employees in Louisiana arguing that Louisiana law protects an individual’s right to choose their health care. 

Faircloth said the restraining order requiring Ochsner to halt firing unvaccinated employees in north Louisiana is encouraging because it suggests the judges think the case has merit.

“To get a temporary restraining order, you must convince the court when you file something that you have a substantial likelihood of success,” said Faircloth. “This very important issue is a resounding wake-up call to all the employers in the state that have been hoodwinked into believing that you can do this.”

But across the country and in the state, hundreds of hospital systems have enacted COVID-19 vaccine requirements, similar to requirements for the flu and hepatitis B vaccine. In September, the federal Centers for Medicare and Medicaid Services, the single largest payer of health care in the United States, said it would require the vaccine for all employees of hospitals that accept payments from the program. That would include Ochsner and all other large hospitals operating in the state.

The ruling for a hearing "just postpones the inevitable," said attorney Joel Friedman, a Tulane Law School professor who specializes in labor law. 

According to Friedman and judges who have dismissed similar complaints, the government’s interest in public health outweighs an individual’s right to privacy, which guards against unreasonable government intrusion.

“There's no violation of any right to privacy here because the government has a compelling interest to require vaccinations under the circumstances to promote public health,” said Friedman.

Ochsner Health did not comment on the lawsuit or provide an update on how many employees were vaccinated on the day of the deadline. As of a month ago, 86% of employees had received at least one shot, according to CEO Warner Thomas. Among physicians and hospital leaders, the rate was 98%.

The new ruling is not an indication that the employees’ claim that the hospital is violating their rights has merit, nor does it have legal implications for lawsuits filed outside of the 2nd circuit, said Friedman. It means that the panel agreed that there should be a hearing to decide whether a hospital’s vaccine mandate is unconstitutional.

“They want the judge to actually rule on the merits and give these people at least the hearings,” said Friedman.

The 3rd Circuit Court of Appeal rejected a request for a similar order against Ochsner Lafayette General Health, though Faircloth said it is still moving forward with an appeal.

A lawsuit against Ochsner LSU Monroe was found to have no legal basis, according to ruling Oct. 27 by the Fourth Judicial District Court. 

https://www.nola.com/news/coronavirus/article_d8eb82b2-38e4-11ec-ac63-7b77e8b29863.html