Judge won't block Mass General from firing workers who refuse to get Covid-19 shots

A federal judge today rejected a request by more than 260 Mass General Brigham employees to block the hospital network from firing them tomorrow because they don't want to get a Covid-19 shot.

US District Court Judge F. Dennis Saylor emphasized the workers can continue to press their claim that the state's largest hospital system will be firing them in violation of the Americans with Disabilities Acts or in violation of their First Amendment religious rights, but ruled that the hospital proved a legitimate interest in requiring shots and that the masks, self-screening, frequent testing and social distancing proposed by the workers were simply no match to vaccinations for curbing a virus that has killed more than 700,000 Americans.

The employees who bought the suit, who include registered nurses and an oncologist, claimed that the fact the hospital did grant shot exemptions to roughly 234 employees, proved their case that the hospital was discriminating against the workers who did not get exemptions.

But at a hearing this morning, Saylor said the evidence before him showed the employees did not yet have a good enough case and failed to show the "irreparable harm" that would be required for him to grant an injunction. He cited one worker who claimed she needed an exemption because she is pregnant; the judge noted that under federal disability law, pregnancy itself is not considered a disability.

In contrast, he said, the hospital proved "it would cause an undue hardship on them to have substantial numbers of unvaccinated employees," both because the hospital would have to hire additional workers to replace unvaccinated ones who contract Covid-19 and because it would lose some amount of public trust if word got out it had a significant number of unvaccinated employees.

Mass General Brigham, which can't turn away patients, he said, "has a very strong interest in assuring the public that it is a reasonably safe environment that it is doing what it can" to reduce the spread of a highly contagious, often deadly disease. He concluded, in fact, that in weighing the potential harm to the employees of not granting the injunction versus the potential harm to Mass General Brigham should he grant it, that the hospital system would face far greater harm with unvaccinated employees on staff.

Hospital attorney Katherine Perrelli said that when Mass General Brigham announced in August it would start enforcing a vaccine mandate on Nov. 5, some 2,402 of its roughly 74,000 employees asked for either medical or religious exemptions. The system set up panels to consider medical exemptions and a separate one to consider religious exemptions.

Ryan McLane, the attorney representing eight named employees plus what he said were 257 others, said the whole process was an inscrutable one and that employees were not given any way to appeal rulings.

Saylor agreed the process was essentially "a black box," but also said he would protect the names of members of the panels in further proceedings because of "the very difficult and tense public environment in which we are operating [related to vaccinations] ... a world in which it's easy to make Internet threats and to harass people on the Internet."

McLane said the workers are hardly in favor of Covid-19, that as health-care workers, their very jobs consist of doing everything they can to fight the disease. "Their job is fighting Covid-19 and they want to go back to work," he said.

Employees retain their rights to practice their religions, to do what they can to protect their own health - one of the plaintiffs said she has endured skin swelling after flu shots - that medical studies showed few hospital workers or patients got Covid-19 from each other and that the employees could be "reasonably accommodated" by letting them wear masks, practice social distancing, do self screening and work at home if they do get sick, McLane said.

Perrelli countered those studies were from 2020, before people started getting vaccinations and before the far more contagious Delta variant began circulating.

She said the mandate applies to all workers, even those still allowed to work at home, because the hospitals are still in "all hands on deck" mode, where remote workers know they can be called into a hospital or clinic at any moment.

Saylor himself added that self screening can be ineffective - some people are infectious but asymptomatic - and that many of the tests now in use are far from 100% accurate. He said McLane had simply failed to show that those measures are as effective as vaccination.

Saylor also ruled McLane had failed to show any retaliation against employees. Perelli said Mass General Brigham will welcome back any of the workers once they show proof of vaccination.