A group of employees at Mass General Brigham, the state's largest hospital concern, today asked a federal judge to block a requirement that they get vaccinated against Covid-19, saying it violates not just their religious freedom but their rights under federal disabilities law.
In their suit and request for a preliminary injunction, the employees say they have nothing against shots, but object to what they claim is Mass General Brigham's "clear bad faith discrimination" against workers who seek to claim a religious or medical exemption against vaccinations.
The employees are represented by Ryan P. McLane, a Feeding Hills attorney who represented two UMass students in their failed bid to show up on campus without getting a shot. In that case, a judge in US District Court in Boston ruled UMass Boston and UMass Lowell had shown a "compelling" interest" in requiring shots for returning students, especially under a 1905 Supreme Court decision in a Cambridge case that allows governments to create vaccination mandates.
Unlike UMass, however, Mass General Brigham is a private entity, which McLane thinks gives his 200 employee clients a different path to victory, via the Americans with Disabilities Act, even aside from the First Amendment issue, which didn't work for one of his UMass clients:
First, what this case is not: this case is not a challenge to the defendant's vaccination policy. Every single plaintiff stands ready, willing, and able to take safety precautions in the workplace to prevent the spread of COVID-19 and protect those that they work with and serve. ... Not only are they willing, but plaintiffs also have and do take safety precautions to prevent the spread of the disease. The vast majority of these plaintiffs heroically fought on the front lines of the pandemic last year, working long hours under extremely stressful conditions to save lives and ensure that people received quality medical care. Their sincerity and commitment to battling COVID-19 should be without question. Each plaintiff has either a religious belief or a disability (a few have both) that conflicts with one safety policy: vaccination. These conflicts are protected under federal law. Thus, this case is not a challenge to the lawfulness of the policy imposed by the defendant, but rather an attempt to prevent discrimination and retaliation based on religion and disability.
What this case is: This case is about the defendant's decision to ignore federal law and instead apply their own set of rules when it comes to religious and disability accommodations, developing their own system-wide "position" around granting these accommodations instead of following Title VII and the Americans with Disabilities Act.
The suit alleges the Mass General Brigham, which includes not just Mass. General and Brigham and Women's but suburban hospitals and clinics, claims that managers created an exemption system that made it near impossible for employees to actually submit exemption requests, in part by encouraging doctors to refuse requests to sign exemptions and by refusing to tell workers who sits on the hospital "exemptions committee."
Instead of interacting with plaintiffs, defendant sent an email to its supervisors providing talking points that these supervisors should use with employees who had their exemptions denied. ... Thus, instead of engaging with and advocating for their subordinate employees, supervisors were to push a narrative on them. This included encouraging them to get vaccinated, despite having already asserted that it would violate their religious conscience or cause them physical harm. Additionally, supervisors were encouraged to push the narrative that a thorough review took place, when in fact the review was not thorough. More telling, supervisors were to promote the narrative that the committee reviewed the requests, not in conformity with the law, but based upon defendant’s "position around granting exceptions."
The request for a preliminary injunction continues that the hospitals face no "undue hardship" by letting workers get religious exemptions, because, after all, they're health care workers:
Every plaintiff, since submitting their accommodation request, has been willing to abide by anyreasonable accommodation that would have little impact on defendant’s business operations and that would ensure the safety of others.
Complete memorandum for a temporary restraining order (3.3M PDF).