Court won't order Mass General Brigham to rehire employees fired for refusing to get a Covid-19 shot while their lawsuit is pending

A federal appeals court yesterday declined to order Mass General Brigham to give six employees their jobs back while they pursue a lawsuit over the way they were fired for refusing to get vaccinated against Covid-19.

The six were among a group of eight - including an oncologist, an RN and two radiology technicians - who sued the state's largest hospital network over its vaccination requirement, which set a Nov. 5 deadline for full vaccination. One of the ones not terminated gave in and got a shot, the other quit.

In its ruling, the US Court of Appeals for the First Circuit upheld US District Court Judge F. Dennis Saylor's ruling that the employees - whose lawyer claims he actually represents more than 260 shot-averse hospital workers - failed to show they actually have a good enough case to warrant a temporary restraining order while their lawsuit proceeds.

The appeals court said that a temporary restraining order would require the employees faced "irreparable harm" in a "genuinely extraordinary situation" while unemployed as the case continues. The court said that should they win their case, they would get damages to make up for any lost wages and other harms.

Also, the First Amendment doesn't apply here, at least in terms of an emergency order, the court said.

They say that unpaid leave or discharge will deprive them of their salaries and health insurance. Nothing about those consequences is unusual. The appellants also allege that they will face psychological injuries if they are terminated. Our precedents also foreclose that argument. "[T]he fact that an employee may be psychologically troubled by an adverse job action does not usually constitute irreparable injury warranting injunctive relief." DeNovellis v. Shalala, 135 F.3d 58, 64 (1st Cir. 1998). Money damages would adequately resolve all of the alleged harms. Moreover, as the deadline for being vaccinated has passed, the appellants cannot point to an "impossible choice" as a special factor here; they have already made their choices.

To the extent the appellants argue that MGB's actions impair their religious liberty rights under the Constitution, that argument fails. As appellants concede, MGB is not a state actor governed by the First Amendment. If MBG's actions turn out to be unlawful, they are remediable through money damages.

Also, the court concluded, the firings don't violate the federal Americans with Disabilities Act because that law exempts firings of employees who cannot carry out their jobs - in this case, by violating a hospital requirement that they not "pose a direct threat to patients" by dealing with them while unvaccinated.

The court noted that the hospital did grant religious or medical exemptions to some 234 of its more than 80,000 employees.

The hospital had set up panels to consider requests for religious or medical exemptions. All eight of the workers who sued had sought religious exemptions, either because they did not believe God wanted them to tamper with His creation of their DNA or because they objected to the use of cell lines from aborted fetuses harvested in the 1970s in the testing of the vaccines. One of the eight said her parish priest had given her dispensation to refuse a shot.

Four also sought medical exemptions, including past swelling after flu shots, anxiety and even PTSD related to shots or being pregnant. The hospital rejected those requests because none met federal guidelines for vaccination contraindications; in fact, the CDC has urged pregnant women to get shots.