No injunction pending appeal for Mass General Brigham employees denied COVID vaccine exemption requests

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By Kathleen Kapusta, J.D.

Mass General Brigham employees failed to convince the First Circuit to issue an injunction pending appeal of a district court’s denial of their request for preliminary injunctive relief against MGB’s application of its mandatory COVID-19 vaccination policy to them individually. Noting that the employees, who sued MGB under Title VII and the ADA, did not challenge the policy itself, but only the denial of their individual exemption requests, the appeals court found adequate legal remedies foreclosed injunctive relief (Together Employees v. Mass General Brigham Inc., November 18, 2021, Lynch, S.).

Vaccination policy. In June 2021, MGB, which owns and operates hospitals and other facilities throughout Massachusetts, announced a mandatory COVID-19 vaccination policy requiring all employees to receive the vaccine by October 15. Noncompliance would result in unpaid leave and ultimately termination. The policy also provided that exemptions would be available for medical or religious reasons.

Exemptions. MGB created several committees to review exemption requests. In addition to plaintiff Together Employees, an unincorporated association of 229 MGB employees who were denied a religious or medical exemption, eight individual plaintiffs were also denied their exemption requests. Of those eight, each had been denied their requested religious exemptions and four had been denied their requested medical exemptions.

Some of the religious exemption requests involved opposition to taking a vaccine that used fetal cells in its testing and development, while other requests centered on keeping the body pure from foreign substances. The four medical exemption requests were based on pregnancy, a prior allergic reaction to a flu shot and chronic lymphocytic leukemia, severe mental anguish and anxiety from being vaccinated, and PTSD.

When they still refused to get vaccinated after their requests were denied, they were placed on unpaid leave. After the vaccination deadline passed, one resigned, one got vaccinated, and the other six were terminated.

Preliminary injunctive relief. The plaintiffs sued MGB, alleging a failure-to-accommodate claim in violation of the ADA, religious discrimination in violation of Title VII, and retaliation. They also sought a preliminary injunction to stop MGB from enforcing its vaccination policy. Finding they were unlikely to succeed on the merits of their claims or demonstrate irreparable harm, the district court denied their request.

Lower court reasoning. As to the employees’ ADA claims, the district court held that they were unlikely to be able to show they were disabled, that they were qualified to do their jobs because they posed a direct threat to patients, that their requested accommodations were reasonable, that they could defeat MGB’s undue hardship claim, or that the exemption process was legally inadequate. Regarding their Title VII claims, the district court, after assuming they demonstrated their sincere religious beliefs, found they could likely not show they could defeat MGB’s undue hardship assertion or that the exemption process was legally inadequate.

The court also found, as to both claims, that they had not shown they exhausted their administrative remedies. Nor were they likely to demonstrate irreparable harm, that the balance of equities favored them, or the public interest supported an injunction.

Irreparable harm. On appeal, the First Circuit noted that it requires a showing of irreparable harm before granting a preliminary injunction since that harm would “impair the court’s ability to grant an effective remedy” following a decision on the merits. Because the employees here had adequate legal remedies, the court found they could not show irreparable harm.

Monetary damages, observed the court, ordinarily provide an appropriate remedy when employees seek to enjoin termination of employment so the employees had to show a “genuinely extraordinary situation.” However, external factors such as insufficient savings or difficulty obtaining a new job, which are common to most discharged employees and which are not attributable to any unusual actions related to the discharge itself, will not support a finding of irreparable injury.

External factors. And here, said the court, all the harms asserted by the employees fell within the “external factors common to most discharged employees” category. For instance, they claimed that unpaid leave or termination would deprive them of their salaries and health insurance but nothing about those consequences was unusual. As to any psychological injuries they would allegedly face if terminated, First Circuit precedent foreclosed that argument. Further, not only would money damages adequately resolve all of the alleged harms, because the vaccination deadline had passed, the employees could not point to an “impossible choice” as a special factor, observed the court, as “they have already made their choices.”

Accordingly, the court denied their motion for injunction pending appeal.

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