ACA.covidsuit.01.092421

Kim Broussard, a retired RN volunteer, prepares a dose of the Pfizer COVID-19 vaccine at the Ochsner Lafayette General Medical Center COVID-19 vaccination clinic Tuesday, March 9, 2021, at the Frem Boustany Convention Center in Lafayette, La.

A judge on Thursday dismissed a lawsuit by 48 Ochsner Lafayette General Health System employees and contractors seeking to stop the hospital's vaccine mandate.

Judge Thomas Frederick of the 15th Judicial District Court in Lafayette, after listening to arguments for two hours, dismissed all action the employees requested against Ochsner Lafayette General, including a request for a permanent injunction that would have declared the mandatory vaccine plan unlawful and unenforceable.

James Faircloth Jr. of Alexandria, attorney for the employees, said his clients have an automatic right to appeal Frederick's decision to the 3rd Circuit Court of Appeal. He will ask for emergency consideration and reversal of the decision.

More than 40 people watched the hearing Thursday from a courtroom too small to accommodate social distancing. About half in attendance did not wear masks, inlcuding at least a half-dozen people in hospital scrubs and lab coats. Neither Frederick nor deputies serving as bailiffs attempted to enforce the statewide indoor mask mandate.

On Aug. 24, after full FDA approval of the Pfizer vaccine, Ochsner issued an order requiring all physicians, vendors, students, staff and residents to take the COVID-19 vaccine by Oct. 29 or risk suspension or loss of their jobs. The 48 filed a lawsuit Monday.

Frederick said he did not consider any of the evidence admitted, including affidavits from employees and experts, because there was no cause of action. The employees maintained they would suffer irreparable injury, loss or damage without an injunction.

The hospital system, Frederick said in announcing his decision, is a private business, not a "state actor." The hospital's actions, he said, are not unconstitutional.

Faircloth, in arguing the case, said the hospital's vaccine policy is "unmitigated coercion" because it states that employees who refuse the vaccine will face disciplinary action, including dismissal.

Attorney Jim Gibson representing Lafayette General argued .009% of the hospital's employees are trying to put patients and other health care workers at risk by refusing the vaccine. They have no cause of action, he said, because they are at-will employees who, in Louisiana, can be fired for no reason.

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"If these people," Gibson said, motioning toward some of the plaintiffs in the courtroom, "don't get the vaccine by Oct. 29, they're fired."

The hospital's policy says any employee not vaccinated by Oct. 29 will placed on leave Nov. 1 until vaccinated or up to 30 days. If not vaccinated after 30 days they will be terminated.

The suit was one of two filed Monday by employees of Our Lady of Lourdes Regional Medical Center and Ochsner Lafayette General facilities across Acadiana to halt mandates requiring employees to take a COVID-19 vaccine.

Both groups of employees are represented by Faircloth.

Both health systems adopted mandatory vaccination policies as a fourth surge of COVID-19, the delta variant, spread through the state.

A hearing date has not been set in the Our Lady of Lourdes case.

Ochsner, in a statement issued Monday afternoon, declined to comment on the lawsuit but wrote that it stands by the science and data demonstrating "the safety and efficacy of COVID-19 vaccinations. Employees with medical or religious objections to the vaccine may file an exemption or deferral request that will be reviewed by a panel of experts," the hospital system stated.

On Wednesday, a nursing student preparing for clinicals is suing the University of Louisiana at Lafayette and Ochsner Lafayette General over COVID-19 vaccine requirements.

Mia Bourg, an Erath resident enrolled in UL's nursing program, filed the lawsuit Wednesday in the 15th Judicial District Court in Lafayette through her attorney L. Shaun Trahan.

The lawsuit alleges the hospital system's employee vaccine mandate, which provides exemptions only for verified religious or medical reasons, differs from the university's vaccine policy that allows students to opt out for any reason, provided it is documented in writing.


Email Claire Taylor at ctaylor@theadvocate.com.