Louisiana Supreme Court hears oral arguments over Ochsner vaccine mandate

The Louisiana Supreme Court Building on Royal Street in New Orleans, Dec. 7, 2021.
The Louisiana Supreme Court Building on Royal Street in New Orleans, Dec. 7, 2021. Photo by Wes Muller

This story was first reported by Louisiana Illuminator and republished with permission.

The Louisiana Supreme Court heard arguments Tuesday on whether a hospital system can require its employees to get vaccinated against COVID-19 as a condition of employment.

The case of Nelson v. Ochsner began in September as a lawsuit filed on behalf of 47 employees — most of them nurses — against Ochsner Lafayette General hospital after Ochsner Health, the state’s largest medical system, announced it would require all employees to take a coronavirus vaccine, apply for an exemption or face termination. The case was consolidated with Hayes v. University Health Shreveport, a nearly identical lawsuit filed by the same attorney, Jim Faircloth.

Faircloth has worked on several other lawsuits pushing back on government COVID-19 mitigation efforts over the last two years. He also worked as former Gov. Bobby Jindal’s general counsel.

At the hearing, Faircloth said his clients have “an affirmative right” to be free from forced medical treatment.

“My clients have the right to request that the government protect them,” he said.

He then argued that Ochsner’s employment relationship should be treated as a doctor-patient relationship and said the employees should be protected under the state’s informed consent statute. Forced vaccinations are a violation of the informed consent that medical professionals are required to obtain, Faircloth said.

Chief Justice John Weimer questioned whether a private employer’s vaccine requirement can be considered a forced medical treatment.

“Are the employees being punished?” Weimer said. “Let’s explore that for a moment. They’re given an option, are they not?”

Weimer pointed out that Ochsner has allowed the employees to apply for religious, medical and other types of personal exemptions and said that being coerced to do something is not the same as being forced to do something.

“Do they not have a choice to either continue the employment or simply seek employment elsewhere?” Weimer said.

Ochsner’s attorney Jim Gibson said the primary question of the case is one of employment law and said the constitutional argument is a “red herring.”

He said Ochsner has the responsibility to protect its hundreds of thousands of other patients and has the right under Louisiana law to require vaccination as a condition of employment.

Employers have a right to protect their businesses and their reputations under Louisiana’s at-will employment statute, which allows employers to hire and fire at-will so long as it is not because of discrimination on the basis of age, sex, race or religion, Gibson said.

Faircloth said such a reading of the at-will doctrine would mean that an individual has the right to do what they want to their body unless their employer says otherwise.

Associate Justice James Genovese asked Gibson if the courts should perform a balancing test to weigh the rights of the employer against the rights of the employee.

“Isn’t it a balancing test of how far an employer can go?” Genovese said. “The at-will doctrine is not an absolute will. There are restrictions.”

Weimer asked if the court should be performing the duties of a company’s human resources department and meddling in the routine employment decisions that every Louisiana business makes.

“They’re free to go somewhere else if they don’t like the rules of the game that the employer has,” Weimer said. “Should the courts get into this balancing act and become a quasi-HR department?”

Since the lawsuits were initially filed, nearly all except for two or three of the named plaintiffs have either left their jobs at Ochsner, obtained exemptions, or gotten vaccinated, according to both attorneys in the case.

Both sides will have 10 days to file additional briefs of information to support their arguments, after which the Supreme Court justices will begin deliberations. Faircloth said he had no guess on how long it might take them to reach a decision. Gibson declined to comment after the hearing.