A new lawsuit alleges that the actions of Shriners Hospital for Children in Texas and HHSC Commissioner Cecille Erwin Young were “motivated by evil motive or intent” when they terminated employment for refusing to get the COVID-19 vaccine. The lawsuit alleges the “deprivation of Plaintiffs’ constitutional and federally secured right to refuse an “Emergency Use Authorization (EUA) investigational drug without incurring a penalty or loss of benefits to which Plaintiffs were otherwise entitled.” The lawsuit alleges that the EUA and PREP Act did not give Shriners Hospital the right to require the investigational drug as a condition of continued employment.

In September 2021, the children’s hospital announced that any new and existing employees would need to receive the injection to maintain employment. The lawsuit is filed on behalf of four plaintiffs who were fired for refusing this vaccine. The complaint refers to a precedent-establishing case (Roman Catholic Diocese of Brooklyn v. Cuomo) as proof that “even

in a pandemic, the Constitution cannot be put away and forgotten.” The lawsuit alleges that the defendants have violated the Fourteenth Amendment rights of the plaintiffs.

The filing states:

“Shriners Hospitals for Children and its executive staff usurped the authority of Congress and the HHS Secretary by amending the Scope of Authorization for each EUA drug and the requirements of the CDC Vaccination Program by requiring that which Congress prohibits, leading to Plaintiffs’ financial, emotional, and legal damages. Defendants had no authority to require Plaintiffs to inject an unlicensed EUA drug into their bodies as a condition of anything because Congress specifically conferred authority onto individuals to either accept or refuse the EUA and PREP Act products without interference.”

The hospital made the original announcement when OSHA issued an Emergency Temporary Standard (ETS)  for employers with 100 or more employees. The ETS required all employees to vaccinate against COVID-19 or submit to weekly tests. Less than a week after that executive order, Shiner’s Hospital announced that “the Joint Boards approved a policy requiring nearly everyone in our organization to get fully vaccinated against COVID-19.”

“Everyone will need their first shot of the vaccination series by October 11 and must be fully vaccinated or have an appropriate exemption approved by December 6. It is a requirement of employment with Shriners Hospitals for Children that all eligible persons be fully vaccinated. Those few who receive exemptions will be required to follow strict protocols that are anticipated to include masking with a special N95 mask and weekly COVID testing. The requirements for medical or religious exemptions are specific. Talk to your local Human Resources team about your personal situation. To apply for an exemption, you must submit supporting documentation as well as a completed request form. All exemption requests will be vetted by a team including corporate leadership.”

The complaint goes on to say that there was no COVID-19 drug licensed and classified by the FDA as a vaccine. Moreover, all drugs, masks, and COVID-19 testing articles, Shriners required Plaintiffs to use were under the PREP Act, which requires only voluntary participation.

The brief described the Texas at-will employment law as the basis for termination but using that law for “the sole purpose of causing emotional and economic damages to Plaintiffs exercising a legal right was unlawful.” At-will employment states that an employer can terminate employment for a good reason, bad reason, or no reason at all. However, the lawsuit claims that this circumstance fails the preemption test. That is to say, Congress granted the authority to distribute investigative drugs and medical countermeasures on the basis that individual participation in such measures is voluntary. The Plaintiffs need to prove that Congress intended to fully occupy that regulatory space without any room for supplemental state regulation.

Commissioner Erwin Young was responsible for instructing hospitals of the Plaintiffs’ right to refuse without consequence. The lawsuit alleges that the commissioner failed to provide this information and instruction. She also failed to issue a public notice or take any disciplinary action despite the news coverage of the unlawful actions taken by hospitals in the state of Texas.

The lawsuit is asking for compensation “both compensatory and general, including, but not limited to, front and back pay; loss of benefits; loss of accumulated sick pay; loss of retirement accounts; lost earnings on retirement funds; vacation time,

compensatory time, and paid time off; negative tax consequences (in the event of a lump sum award), including related accountant fees; attorney’s fees; emotional distress; mental, psychological and physical harm; loss of income; loss of enjoyment of life; for which defendants are liable in compensatory, punitive, exemplary, legal, equitable, and all other damages that this Court deems necessary and proper.”

If this lawsuit is successful, it could set a precedent to encourage more lawsuits in the same vein, addressing vaccine mandates that resulted in the termination of employment. A similar lawsuit filed in 2021 was thrown out by the judge, who said the plaintiff “can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” That lawsuit was against Houston Methodist Hospital and was brought by 117 plaintiffs who were terminated for refusing the COVID-19 vaccination.