Appeals court sides with health care workers against Ochsner Health vaccination mandate

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A Louisiana appeals court has issued a temporary setback for Ochsner Health as a lawsuit challenging the hospital chain’s employee COVID-19 vaccination mandate was sent back to a lower court for further review.

Ochsner, the state’s largest health system, implemented a vaccination mandate for all employees in August. The policy set an Oct. 29 compliance deadline, after which unvaccinated health workers would be terminated.

Dozens of employees in Shreveport sued the health care giant, but the case was dismissed early last month. The 2nd Circuit Court of Appeal in Shreveport, however, ruled Ochsner cannot penalize its employees while the vaccination mandate is still being challenged in court.

Disciplining or firing unvaccinated employees “would unlawfully abridge certain alleged constitutional rights,” a three-judge panel said Thursday, one day before the vaccine deadline.

The panel reversed a Caddo Parish district court’s dismissal, which it said was in “error,” and remanded the case back to state District Judge Craig Marcotte for a full hearing.

“The matter is remanded to the trial court with instructions to enter a temporary restraining order enjoining any disciplinary action [by Ochsner] including termination of employment for unvaccinated employees on October 29, 2021, as requested and to conduct a hearing on the request for preliminary injunction and declaratory relief within the timeframe provided by law,” the decision said.

While applying only to Ochsner employees in the appeals court’s north Louisiana jurisdiction, plaintiff attorney Jimmy Faircloth, who once served as executive counsel to former Gov. Bobby Jindal, said the decision could have far-reaching consequences.

“This ruling applies not only to the Ochsner Shreveport plaintiffs in the case, but it has broader implications for all hospitals statewide who are imposing vaccine mandates,” Faircloth said in a statement .

“The anti-reprisal statute prohibits employers from taking action against employees for refusing to participate in an unlawful activity. It provides for damages and attorney fees against an offending employer. The Second Circuit just informed employers that this action is very likely unlawful,” he said.

Faircloth sued Ochsner’s Lafayette location in September on behalf of 48 unvaccinated employees. That case also was dismissed at the district court level. The 3rd Circuit Court of Appeal, the largest of Louisiana’s five circuit courts, however, rejected a similar appeal last week.

In response to Thursday’s ruling, Ochsner Health President and CEO Warner Thomas issued a statement , saying the decision was both “surprising and disappointing.”

“This ruling is inconsistent with established Louisiana law as well as with decisions of courts across the country upholding COVID-19 vaccine mandates,” he said.

Thomas said the vast majority of Ochsner employees have complied with the health system’s vaccination mandate and the policy is aligned with “the anticipated federal requirement for COVID-19 vaccination of staff within all Medicare and Medicaid-certified facilities announced Sept. 9.”

“Ochsner Health intends to appeal to the Louisiana Supreme Court and is confident we will prevail,” Thomas said.

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