Jason Hayes, Et Al. v. University Health Shreveport, Llc D/b/a Ochsner Lsu Health Shreveport And Ochsner Lsu Health Shreveport - St. Mary Medical Center, Llc (Parish of Caddo) Reversed; Trial court judgment reinstated. Supreme Court Of Louisiana No .

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #001
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 7th day of January, 2022 are as follows:
BY Weimer, C.J.:
2021-CC-01601 JASON HAYES, ET AL. VS. UNIVERSITY HEALTH SHREVEPORT, LLC
D/B/A OCHSNER LSU HEALTH SHREVEPORT AND OCHSNER LSU
HEALTH SHREVEPORT - ST. MARY MEDICAL CENTER, LLC (Parish of
Caddo)
Reversed; Trial court judgment reinstated.

SUPREME COURT OF LOUISIANA
No
. 2021-CC-01601
J
ASON HAYES, ET AL.
VS
.
U
NIVERSITY HEALTH SHREVEPORT, LLC
D/B/A OCHSNER LSU HEALTH SHREVEPORT AND
OCHSNER LSU HEALTH SHREVEPORT-ST. MARY MEDICAL
CENTER, LLC
On
Writ of Certiorari to the Court of Appeal,
Second Circuit, Parish of Caddo
W
EIMER, C.J.
At
issue is a COVID-19 vaccine mandate implemented by an employer -
healthcare provider. This matter is resolved by the application of the employment-
at-will doctrine, which is rooted in Louisiana Civil Code article 2747. 1 This
provision has been uniformly held to reflect employment at will—which means an
employer is at liberty to dismiss an at-will employee and, reciprocally, the employee
is at liberty to leave the employment to seek other opportunities. However, these
rights are tempered by federal and state provisions, both statutory and constitutional,
but no such exceptions apply here. Employees have no statutory claim under La.
R.S. 40:1159.7 because there is no healthcare provider-patient relationship alleged
1 Utilizing archaic language, La. C.C. art. 2747 provides: “A man is at liberty to dismiss a hired
servant attached to his person or family, without assigning any reason for so doing. The servant
is also free to depart without assigning any cause.”
Louisiana courts began citing this article in the early 1960s in applying the employment-at-will
doctrine. See Baker v. Union Tank Car Co., 140 So.2d 397, 402 (La. App. 1 Cir. 1962). The
doctrine was previously jurisprudentially recognized in Russel v. White Oil Corp., 162 La. 9, 110
So. 70 (1926), which cited common law authorities.
01/07/22

2

here. Employees likewise have no constitutional claim under La. Const. art. I, § 5
because the employer is a private actor, and this constitutional provision only limits
governmental actors.2 Accordingly, the decision of the court of appeal is reverse d,
and the judgment of the trial court is reinstated.
FACTS AND PROCEDURAL HISTORY
In the latter part of August 2021, 3 University Health Shreveport, LLC d/b/a
Ochsner LSU Health Shreveport and LSU Health -St. Mary Medical Center, LLC
(Employer) notified all employees4 that they were required to be fully vaccinated by
October 29, 2021. Employees not vaccinated within the specified time were subject
to disciplinary action, including mandatory use of leave time and, ultimately,
termination. Employer’s policy permitted exemptions to the vaccine requirement for
valid religious and medical reasons.
Thereafter, 39 plaintiffs 5 (Employees) filed suit against Employer,
challenging the employee vaccine mandate and requesting injunctive and
declaratory relief, including a temporary restraining order (TRO).6 After a hearing,
the trial court denied Employees’ request for a TRO, and Employer was ordered to
show cause on October 19, 2021, why preliminary injunctive relief should not be
granted.

2 The issue of whether a state actor can implement a similar mandate is not before this court.
3 At that time, the state had been operating in a declared state of emergency due to COVID-19, a
highly contagious virus that spread throughout the world, resulting in economic turmoil, a public
health crisis, a substantial burden on the healthcare system, and a significant number of infections
and deaths.
4 The notice was directed to all “physicians, APPs [advanced practice providers,] and all
employees, vendors, contracted staff, medical and allied health stude nts, residents, fellows, and
agency staff.”
5 Employees alleged in their petition that “33 of the 39 Plaintiffs submitted a request for
exemption.” They further alleged that “22 exemptions have been granted, two have been denied,
and the status of 8 is unknown.”
6 Notably, cases are pending in the federal courts involving vaccine mandates, which present
issues of federal law, and do not directly affect the instant case, which is based solely on state law.

3

In response, Employer filed an exception urging that Employees failed to state
a cause of action on the following grounds:7 (1) the vaccine mandate does not violate
a constitutional right to privacy as Employer is a private actor; (2) even assuming a
cause of action exists against priva te actors, Employer’s vaccine mandate does not
violate any constitutional rights to privacy as this is not a forcible injection case; (3)
the vaccine mandate does not violate statutory law; and (4) pursuant to the at-will
employment doctrine, Employer can terminate Employees for failing to receive the
vaccine. These exceptions were set for hearing on October 19, 2021, with the request
for a preliminary injunction.
During the hearing, the trial court observed “the employees and employers
employment at-will is just that. [The Employer] can fire them [e]xcept if it’s based
on a protected class such as sex or race.” Because Employees “have a right to refuse
healthcare,” Employees argued that “on the face of the petition, [Employees have]
clearly pled facts that, if true, would make this an unreasonable policy,” urging that
“[t]his case involves the threat of a firing in violation of the law.” Employer urged
this case involves the relationship between an employer and employee, and the threat
of being discharge d from at -will employment does not constitute duress. At the
close of arguments, the trial court noted that this issue presents itself in an
“employer/employee context” and found:
[In] an at-will state, [employees] do have a choice. They can choose to
get [vaccinated] or not ... . Yes, I understand there are repercussions if
you don’t get [vaccinated]. Like in the Tate case.
[8]... Employers have
this right, just like employers have the right if somebody wants to wear
this particular T-shirt or they don’t want to wear the uniform, which is
a freedom of speech, an employer can say ... you’re wearing our
uniform or you’re not working here.

7 Employer also filed exceptions raising the objections of no right of action and prematurity.
8 Tate v. Woman’s Hosp. Found., 10-0425 (La. 1/19/11), 56 So.3d 194.

4

Accordingly, the trial court sustained Employer’s exception raising the objection of
no cause of action, dismissed Em ployees’ claims with prejudice, and denied
Employees’ request for a preliminary injunction as moot.
Subsequently, Employees filed a writ application with the court of appeal and
this court,9 as well as an appeal. Employees’ writ application was granted by the
court of appeal, and the trial court’s ruling was reversed based on the following
reasons:
After a de novo review of this well -pled petition, we conclude that
[Employees] stated a cause of action for preliminary injunction and
declaratory relief on the claim that disciplinary action including
termination of employment by defendants, notwithstanding the
employment at-will doctrine, would unlawfully abridge certain alleged
constitutional rights and that [Employees] are entitled to a hearing
thereon. Moreover, we find that the exception of no cause of action is
not the appropriate procedure to dispose of this important constitutional
issue. Thus, the denial of the request for temporary restraining order
which would have allowed for a hearing under the appropriate legal
process was in error, as was the sustaining of the exception of no cause
of action and dismissal of the petition with prejudice.

Accordingly, this writ is granted and the October 12, 2021, and October
20, 2021, rulings are reversed. The matter is remanded to the trial court
with instructions to enter a temporary restraining order enjoining any
disciplinary action including termination of employment for
unvaccinated employees on October 29, 2021,
[10] as requested and to
conduct a hearing on the request for preliminary injunction and
declaratory relief within the timeframe provided by law.

Hayes v. University Health Shreveport, LLC , 54,445 (La.App. 2 Cir. 10/28/21)
(unpublished writ action).
11

9 Hayes v. University Health Shreveport, LLC, 21-1542, currently pending before this court.
10 The court of appeal erred factually. The employment of Employees was not scheduled to be
terminated on October 29, 2021. Instead, “[i]ndividuals not fully vaccinated by the deadline
[Friday, October 29, 2021] will be placed on leave and removed from the schedule beginning
Monday November 1, for 30 days or until fully vaccinated.” “Any employee not fully vaccinated
following the 30- day leave period ending Monday, November 29, will be terminated for policy
violation.” Exemptions were provided for legitimate medical reasons and religious beliefs.
11 Notably, the judgment upon which the trial court ruled was a final, appealable judgment ( see
Everything on Wheels Subaru, Inc. v. Subaru South , Inc., 616 So.2d 1234, 1239 (La. 1993));
the court of appeal , instead, handled the case on an application for supervisory review , on an
expedited basis, without giving Employer an opportunity to be heard. However, because Employer
is granted relief herein, this court declines to address the procedural irregularities with the court of
appeal opinion.

5

In light of a hearing scheduled for November 9, 2021, on Employees’ petition
for preliminary injunction, Employer filed a writ application with this court,
requesting that the court of appeal’s decision be stayed, which was granted “pending
further orders of this court.” Hayes v. University Health Shreveport, LLC , 21-
1601 (La. 11/6/21). Subsequently, Employer’s writ application was granted for the
purpose of determining whether Employees of a private healthcare provider stated a
cause of action for a constitutional violation caused by the Employer’s vaccination
mandate with medical and religious exceptions, entitling Employees to injunctive
and declaratory relief.
12 Hayes v. University Health Shreveport, LLC , 21-1601
(La. 11/17/21), __ So.3d __.
DISCUSSION
In deciding an exception raising the objection of no cause of action, this court
is guided by the well-settled principle that the function of an exception of no cause
of action is to test the legal sufficiency of the petition by determining whether the
law affords a remedy on the facts alleged in the pleading. Darville v. Texaco, Inc.,
447 So.2d 473, 474 -75 (La. 1984). No evidence may be introduced to support or
controvert the objection that the petition fails to state a cause of action. La. C.C.P.
art. 931. Therefore, the court reviews the petition and accepts well- pleaded
allegations of fact as true, and the issue at the trial of the exception is whether, on
the face of the petition, the plaintiff is legally entitled to the relief sought.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235
(La. 1993).

12 In Nelson v. Ochsner Lafayette General , 21-1453, consolidated with the instant case and
decided in a separate opinion issued on the same day, 47 employees filed suit against Lafayette
General Health System, Inc., seeking to enjoin the employer-healthcare provider from enforcing a
COVID-19 vacc ine mandate. In Nelson , the trial court denied the employees’ request for a
temporary restraining order, sustained the employer’s exception raising the objection of no cause
of action, and dismissed employees’ action. The appellate court denied employees ’ writ
application, finding “no error in the trial court’s ruling.” Nelson v. Ochsner Lafayette General,
21-0648 (La.App. 3 Cir. 10/27/21) (unpublished writ action).

6

The salient allegations of the petition are as follows. The plaintiffs are
employees, staff, and contract workers of Employer , which they allege to be a
“private employer.” Employer is attempting to require Employees to be vaccinated
against COVID-19 by October 29, 2021, or face “disciplinary action.” Employees
object to the mandate based on their “fundamental right” to make autonomous,
informed decisions regarding medical treatment.
“The employer -employee relationship is a contractual relationship.”
Quebedeaux v. Dow Chem. Co., 01-2297, p. 4 (La. 6/21/02), 820 So.2d 542, 545.
“As such, an employer and employee may negotiate the terms of an employment
contract and agree to any terms not prohibited by law or public policy.” Id., 01 -
2297 at 4-5, 820 So.2d at 545. “When the employer and employee are silent on the
terms of the employment contract, the [Louisiana Civil Code] provides the default
rule of employment-at-will.” Id., 01-2297 at 5, 820 So.2d at 545. “This default rule
is contained in LSA-C.C. art. 2747,” which has been in the Civil Code since 1808–
over 213 years. This code article sets forth the fundamental framework for
Louisiana’s at-will employment doctrine —which means that, generally, “an
employer is at liberty to dismiss an [at-will] employee at any time for any reason.”
See Quebedeaux, 01-2297 at 5, 820 So.2d at 545. Reciprocally, at-will employees
are at liberty to leave the employment to seek other opportunities for any reason or
no reason at any time.
However, an employer’s right to terminate an at-will employee “is tempered
by numerous federal and state laws which proscribe certain reasons for dismissal of
an at-will employee.” Quebedeaux, 01-2297 at 5, 820 So.2d at 545. As long as the
termination does not violate any statutory or constitutional provisions, the employer
is not liable for wrongful termination. For example, laws prohibit discrimination
against anyone based on “race, sex or religious beliefs,” and protect employees from
termination “for exercising certain statutory rights.” See id., 01-2297 at 5, 820 So.2d

7

at 545-46 & nn.8 & 9 (citing 42 U.S.C.A. § 2000e, et seq.; 42 U.S.C.A. § 1981; La.
R.S. 23:301, et seq.; La. R.S. 23:1361). “Aside from [these limited] federal and state
statutory exceptions, there are no broad policy considerations creating exceptions to
employment at will.” Id., 01-2297 at 5, 820 So.2d at 545-46.
Here, whether Employees have stated a cause of action depends on whether
federal or state law limits Employer’s right to terminate an at -will employee for
failure to comply with the vaccine mandate. This case does not involve allegations
of constitutionally prohibited discrimination based on race, sex, or religious belief,
nor does it involve a statute that was adopted for the purpose of protecting an
employee from termination under these circumstances . Rather, Employees argue
that Employer’s ability to dismiss them as at-will employees is tempered by an
existing statute and the Louisiana Constitution—namely, La. R.S. 40:1159.1 , et seq.,
and La. Const. art. I, § 5. Both of these arguments are unavailing.
With respect to their statutory argument, Employees point to La. R.S.
40:1159.7 of the Louisiana Medical Consent Law (La. R.S. 40:1159.1 , et seq.),
which governs the right of an adult to refuse medical treatment and provides:
Nothing contained herein shall be construed to abridge any right of a
person eighteen years of age or over to refuse to consent to medical or
surgical treatment as to his own person.

Employees’ statutory claim against Employer fails. The medical informed
consent provision on which Employees rely applies to the relationship between a
healthcare provider, a patient, or a patient’s lawful representative .13 See La. R.S.
40:1157.1(A) and 40:1159.4. Indeed, the Subchapter of the “Healthcare Provisions:
Health Care” Chapter within which the consent law is found is titled “ Healthcare

13 “The informed consent doctrine is based on the principle that every human being of adult years
and sound mind has a right to determine what shall be done to his or her own body.” Snider v.
Louisiana Med. Mut. Ins. Co., 13-0579, p. 8 (La. 12/10/13), 130 So.3d 922, 930. “Surgeons and
other doctors are thus required to provide their patients with sufficient information to permit the
patient himself to make an informed and intelligent decision on whether to submit to a proposed
course of treatment.” Id.

8

Consumers.” Employees have not alleged that Employer is their healthcare provider
or that they are patients of Employer. Instead, their cause of action is based on an
employer-employee relationship. This court, therefore, finds Employees have not
alleged a cause of action based on the Medical Consent Law.14
Employees’ claim under La. Const. art. I, § 5 is likewise unavailing.
Employees invoke their right to privacy under La. Const. art. I, § 5, which they liken
to their right to be free from discrimination based on race, sex, and religious beliefs
in the workforce. La. Const. art. I, § 5 states, in pertinent part:
Every person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or
invasions of privacy.

In Hondroulis v. Schuhmacher, 553 So.2d 398, 415 (La. 1988) (on reh’g),
in the context of informed consent, this court recognized that the right to privacy
contained in La. Const. art. I, § 5 provides the right to decide whether to obtain or
reject medical treatment. While Employer does not dispute that Louisiana
recognizes a constitutional right to reject medical treatment, Employer asserts this
remedy is limited to state actors. S tated differently, because Employer is a private
entity, Employer contends La. Const. art. I, § 5 is not applicable. Here, Employer
has been sued in its capacity as a “private employer.” There is no allegation or even
the barest insinuation that Employer is a state actor; indeed, the parties in this case
stipulated that Employer is a private actor.
Louisiana courts have consistently required governmental action to trigger the
application of La. Const. art. I, § 5. See Allen v. La. State Bd. of Dentistry, 543
So.2d 908, 911-12 (La. 1989) (the prohibitions against illegal searches and seizures
in La. Const. art. I, § 5 “are aimed at governmental conduct rather than the actions

14 Employees further assert the right to refuse medical treatment is also embodied in the Louisiana
Advanced Directive laws, see La. R.S. 40:1151.2; the Louisiana Military Advanced Directive Act,
see La. R.S. 40:1153.2; and the nursing home residents’ bill of r ights, La. R.S. 40:2010.8(6).
However, none of these statutes are relevant to the employment context.

9

of private citizens operating independently of the government or its agents”) . See
also, e.g., Guilbeaux v. Guilbeaux, 08-17, p. 7 (La.App. 3 Cir. 4/30/08), 981 So.2d
913, 917 (“Insofar as [defendants] are not state actors, we find that [plaintiff] does
not have an invasion of privacy claim under Article I, § 5.”); Johansen v. La. High
Sch. Athletic Ass’n, 04-0937, p. 12 (La.App. 1 Cir. 6/29/05), 916 So.2d 1081, 1090
(“[T]he protection extended by Article I, § 5 does not extend so far as to protect
private citizens against the actions of private parties.”); Brennan v. Bd. of Trustees
for Univ. of La. Syst., 95-2396 (La.App. 1 Cir. 3/27/97), 691 So.2d 324, 328 (“The
Louisiana Constitution’s protection of privacy provisions contained in Article I, § 5
does not extend so far as to protect private citizens against the actions of private
parties.”); Carr v. City of New Orleans, 622 So.2d 819, 822 n.3 (La.App. 4 Cir.
7/27/93) (the plaintiff “states that she is asserting a claim for breach of privacy under
Article 1, Section 5 of the Louisiana Constitution. [The plaintiff’s] constitutional
claim is inapplicable here, where the defendants are private parties.”); Casse v. La.
Gen. Servs., Inc ., 531 So.2d 554, 555 (La. App. 5 Cir. 1988) (quoting Louis
“Woody” Jenkins, The Declaration of Rights, 21 Loyola L. Rev. 9, 28) (“The Section
(Art. I, Sec. 5) is intended to apply solely to government action, in accord with the
view of the committee that a bill of rights cannot reach private action.”) .15 Federal
courts applying Louisiana law have reached the same conclusion . See Parks v.
Terrebone Parish Consol. Gov., No. CV 16-15466, 2017 WL 699838 at *11 (E.D.
La. 2017) (quoting Brennan, 95-2396 at 7, 691 So.2d at 328) (“[N]either state
constitutional provision ‘extend[s] so far as to protect private citizens against the

15 Many cases addressing the rig ht to privacy under La. Const. a rt. I, § 5 involve the legality of
police action (often in the context of searches and seizures) , and the court has likewise indicated
in those cases that the right to privacy protects against government al action. See, e.g., State v.
Tucker, 626 So.2d 707, 710 (La. 1993) (recognizing “the citizen’s right to be free from
governmental interference”); State v. Belton, 441 So.2d 1195, 1199 (La. 1983) (recognizing the
“right to be free from government interference”); State v. McHugh, 630 So.2d 1259, 1264 (La.
1994) (an individual’s “right to be left alone, to be free of unjustified governmental interference
with his mind, body or autonomy, is also protected by Article I, § 5’s reasonableness clause, which
secures an individual from any unreasonable invasion of privacy.”).

10

actions of private parties.’”); Ponder v. Pfizer, Inc., 522 F.Supp.2d 793, 798 (M.D.
La. 2007) (dismissing a privacy claim against an employer and holding: “While
courts have found [La. Const. art. I, § 5] applicable to government conduct,
Louisiana courts have not applied it to private action.”).16 Therefore, the validity of
these cases is upheld, and this court declines the invitation to extend the scope of La.
Const. art. I, § 5 to restrict private actors.17
Employees’ primary argument in favor of their position that Section 5 applies
to private actors is this court’s recognition in Hondroulis18 that La. Const. art. I, §
5 establishes an “affirmative right to privacy impacting non-criminal areas of law
and establishing the principles of the Supreme Court decisions in explicit statement
instead of depending on analogical development.” Id., 553 So.2d at 415 (on reh’g)
(emphasis added; citations omitted). According to Employees, the use of the phrase
“affirmative right” means the protection afforded by Section 5 goes beyond state
action to create a cause of action against private parties. Contrary to Employees’
arguments, and c onsidering the context in which this statement was made in
Hondroulis, this court interprets that language as a simple statement of the obvious,
that is, what was previously an unwritten right was made express in the 1974
Louisiana Constitution and is no longer derived by implication. See Lee Hargrave,

16 This conclusion is consistent with the Fourth Amendment of the United States Constitution as
interpreted by the Supreme Court, which has been applied only as a restraint on the government
and not as a limitation on nongovernment al actors. Burdeau v. McDowell , 256 U.S. 465, 475
(1921); U.S. v. Jacobsen, 466 U.S. 109, 113 (1984); Katz v. U.S., 389 U.S. 347, 350 (1967). See
also Moresi v. State Dept. of Wildlife and Fisheries, 567 So.2d 1081, 1092 (La. 1990) (noting
the “strong resemblance between our state guaranty and that of the Fourth Amendment”).
17 There is dicta in Parish National Bank v. Lane, 397 So.2d 1282, 1286 n.8 (La. 1981) , and
Jaubert v. Crowley Post -Signal, Inc., 375 So.2d 1386, 1387 n.2 (La. 1979), regarding the
contention that the right to privacy in La. Const. art. I, § 5 extends to private entities. In Moresi
v. State, Dep’t of Wildlife & Fisheries , 567 So.2d 1081, 1092 (La. 1990), which involved the
actions of a state actor, this court noted that the protection afforded by La. Const. art. I, § 5 “goes
beyond limiting state action.” With this holding, that dicta is rejected by this court.

18 The sole issue in Hondroulis was a narrow one, which is not at issue here: “Does a medical
consent form, which tracks the language of [former] LSA-R.S. 40:1299.40 A., have to specify all
known risks of a particular surgical procedure?” Id., 553 So.2d at 400. The court’s holding did
not involve constitutional rights or the employment -at-will doctrine, but instead involved
interpretation of former La. R.S. 40:1299.40, which was Louisiana’s informed consent statute at
that time.

11

The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 1
& 21 (1975) (stating that La. Const. art. I, § 5 “establishes” the protection of privacy
“in an explicit statement instead of depending on reasoning from other
[constitutional] provisions for its establishment”).
CONCLUSION

For t he foregoing reasons, no exception to this state’s at-will employment
doctrine applies in this matter.19 In the absence of the existence of any statutory or
constitutional rights that temper the application of that doctrine, as explained in
Quebedeaux, this court finds Employer is entitled to terminate Employees for
failure to comply with the vaccine mandate. Employees have not stated a cause of
action under La. Const. art. I, § 5 or Louisiana statutory law for injunctive or
declaratory relief.
DECREE
The decision of the court of appeal is reversed, and the trial court’s judgment
sustaining an exception of no cause of action filed by University Health Shreveport,
LLC d/b/a Ochsner LSU Health Shreveport and LSU Health -St. Mary Medical
Center, LLC, denying injunctive relief, 20 and dismissing the plaintiffs’ action is
reinstated.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.

19 A corollary of the employment -at-will doctrine is that courts are not quasi -human resources
departments that re-evaluate personnel decisions or the wisdom of those determinations, so long
as there is no violation of “federal and state laws which proscribe certain reasons for dismissal of
an at-will employee.” See Quebedeaux, 01-2297 at 5, 820 So.2d at 545. “The role of the courts
is not to judge whether an employer’s personnel decisions are fair or good business decisions.”
Hook v. Georgia-Gulf Corp., 99-2791, p. 14 (La.App. 1 Cir. 1/12/01), 788 So.2d 47, 56. “Broad
policy considerations creating exceptions to employment at will and affecting relations between
employer and employee should not be considered by this court.”
Quebedeaux, 01-2297 at 5, 820
So.2d at 546 (citing Gil v. Metal Serv. Corp., 412 So.2d 706, 708 (La.App. 4 Cir. 1982)).

20 Although the right to amend is ordinarily afforded, this court cannot perceive of an amendment
that could establish a cause of action under the circumstances of this case. See La. C.C.P. art. 934.
Indeed, counsel for Employees conceded as such at the hearing in this matter.