Constitution doesn't give you the absolute right to refuse vaccination in a pandemic and keep working, judge rules in mostly dismissing suit by hospital employee

A federal judge yesterday dismissed most of a lawsuit by a Milton Hospital office manager who was fired when she refused to get vaccinated against Covid-19.

US District Court Judge Angel Kelley dismissed four of Amanda Bazinet's five claims against the hospital and its parent, Beth Israel Lahey Health and said she was inclined to toss the fifth - in which Bazinet alleged she was the victim of employment discrimination under state law. But because neither side really fleshed out its arguments on that count, she gave Bazinet's lawyer two weeks to more fully make his case on that point and the hospital's lawyers a week to rebut.

Bazinet's suit centered on both her supposed religious right to not get a shot and the allegation that the hospital had to uphold that right because it was a "state actor" doing the bidding of the federal government, which is not allowed to discriminate on the basis of religion. This, her lawyer argued, meant she shouldn't have been fired in January, 2022 after refusing a 2021 mandate by the hospital that employees get fully vaccinated against the virus and should have been allowed to remain on the job, wearing a mask and taking periodic Covid-19 tests.

She also alleged the hospital's mandate and her firing constituted assault, by putting her in fear of the alleged injury a shot could cause her.

In her ruling, however, Kelley found the complaint the legal equivalent of Swiss cheese. For example:

The Plaintiff alleges that she had the right and protected interests under Articles IV, X, XX, XXI, XXIX, and XXX of the Massachusetts Declaration of Rights violated. The Court is at a loss to understand the basis of Plaintiff’s allegations because many of these Articles are irrelevant to this action. Article IV addresses the right to self-governance, Article XX provides that rights of the legislature are reserved to the legislature, Article XXI sets forth the speech and debate clause, Article XXIX applies to the impartial administration of justice, and Article XXX addresses separation of powers.

More important, however, Kelley said part of the suit fails because it alleged the hospital was a "state actor" doing the bidding of the federal government and because, even if it were, in a public-health emergency, the government can narrowly override certain rights in the interests of public health.

Plaintiff attempts to characterize Defendants as state actors by alleging that they were coerced by the federal government to enact vaccine policies or lose their federal funding. However, receiving federal funding is insufficient to qualify a private entity as a state actor.

She continued that even if the federal government were pulling the hospital's strings, "Noncompliance with mandatory vaccine laws is not a protected liberty interest."

She cited a 1905 Supreme Court case, involving a minister in Cambridge who refused to have his sons vaccinated against smallpox in the middle of a smallpox epidemic. The court ruled that in an emergency, the government can create narrow rules that override the normal "protected liberty interest" under which a person has a right to decide what to do with their own body.

In Jacobson, the plaintiff challenged the state's mandatory vaccine laws alleging that it infringed his liberty and due process rights under the Fourteenth Amendment. However, the Supreme Court upheld the state's police powers to implement vaccine mandates against the smallpox outbreak. In doing so, the Supreme Court rejected the Fourteenth Amendment challenge to the state's vaccine law because it had "real [and] substantial relation to the protection of the public health and the public safety." Here, Plaintiff attempts to assert a federally secured right to bodily integrity. However, the Court in Jacobson reasoned that, even if mandatory vaccines intervened with a federally secured right, freedoms can be constrained to secure the health and welfare of the state. Thus, it is well-settled that in a public health emergency, such as a viral outbreak, the individual rights that would otherwise be protected can be reasonably and constitutionally constrained to benefit the well-being of the majority.

She continued:

This is undoubtedly and particularly true of a hospital enacting a vaccination requirement to protect its patients, employees, and general population. In a pandemic, one's fate is interconnected with that of the community. As in Jacobson, this Court declines to interpret the right to refuse mandatory vaccines as a federally secured right under the Fourteenth Amendment. Therefore, Plaintiff failed to state a claim that she was deprived of a federally secured right.

Kelley also concluded the hospital vaccination mandate was no assault, that it was hardly a threat to do physical harm to Bazinet, let alone an actual attack:

In the Amended Complaint, Plaintiff merely makes a conclusory allegation that Defendants' insistence on complying with the Policy was "an intentional attempt" to "threaten and cause harmful and offensive contact." Moreover, Plaintiff even acknowledges in her Amended Complaint the intended purpose of the Policy was to "afford protection to its employees and patients from infection and spread of COVID-19." Indeed, Plaintiff has failed to allege any facts to support their allegation that Defendants acted with assaultive intent.

Furthermore, even if the Amended Complaint sufficiently pleaded that Defendants acted with the requisite intent, it still fails to show that they committed an overt act that would have placed Plaintiff in reasonable apprehension of imminent harmful or offensive contact. In the Amended Complaint, Plaintiff alleges that Defendants committed overt acts when they insisted that she abide by the Policy and "attempted to coerce [her] to take the injections." These allegations fail to state a claim because they rely on Defendants' words alone, rather than an overt act - such as an apparent physical movement - and thus could not put Plaintiff in reasonable apprehension of contact.

Kelley concluded with an explanation of why she will likely dismiss Bazinet's remaining charge - but that she would wait until both sides provided more detailed reasoning - in which she alleged the hospital violated her employment and civil rights under Massachusetts state law:

Plaintiff has not sufficiently alleged that her reluctance to be vaccinated is grounded in sincerely held religious beliefs. Instead, Plaintiff's objections appear to stem from her philosophical, medical, or scientific beliefs about the vaccine. Indeed, much of the Amended Complaint merely attacks the efficacy and validity of the COVID-19 vaccine. Moreover, the Plaintiff does not describe in her Amended Complaint her religious beliefs or principles in any meaningful way, or how they relate to vaccines generally or to the COVID-19 vaccine specifically. In fact, she does not allege that her religion requires her to observe certain medical limitations that include a refusal to take vaccines. Additionally, there is no specific indication as to how Plaintiff's beliefs or principles have affected her other medical decisions in the past.

Even if the Court assumes that Plaintiff holds sincerely held religious beliefs against receiving the COVID-19 vaccine, Plaintiff's Title VII claim still likely fails because the reasonable accommodation she proposed would likely have caused undue hardship to Defendants. While Defendants failed to address this in their brief, relevant case law has asserted that, in a global pandemic, unvaccinated employees cause an undue hardship to employer- hospitals because they can spread COVID-19 to colleagues and vulnerable patients. ... Accommodating the request for exemption in those contexts may have caused death or increased the spread of disease to medically vulnerable patients, ultimately leading to more hospitalizations and further draining the already overburdened provider workforce. Given that requests like those made by Plaintiff have similarly been rejected for placing an undue hardship on hospitals, it stands to reason that the same would be the case at the hospital at issue here.

Bazinet is represented by Richard Chambers of Lynnfield, who has brought a number of Covid-19-related lawsuits, including workers at other Beth Israel Lahey hospitals, a number of of anti-vaxxers in their failed suit against Boston over its three-month requirement to show proof of vaccination for admission to many indoor venue as well as four North End restaurant owners in their failed suit over whether Mayor Wu enacted fees for outdoor patios in the North End - an outgrowth of pandemic-related outdoor dining - because she hated white, Italian men.