Judge Blocks Firing Of NorthShore Nurses Who Decline Vaccination

EVANSTON, IL — A federal judge blocked NorthShore University HealthSystem from enforcing its COVID-19 vaccine mandate on a group of employees who have declared they do not want to be vaccinated for religious reasons.

Ahead of Sunday's deadline for the approximately 17,000 workers of the six-hospital group to be vaccinated, U.S. District Judge John Kness granted a temporary restraining order to a group employees — 11 nurses, a pharmacy technician, a patient access representative and a senior application analyst — who filed suit as Jane Does 1-14.

The workers are seeking Kness' permission to proceed under the assumed names, and also hope to have the suit certified as a class action. The judge has yet to rule on either matter.

The restraining order took effect Monday and may be extended, depending on the results of an upcoming hearing on whether to grant a preliminary injunction.

Their complaint alleges violations of the recently amended Illinois Health Care Right of Conscience Act, protections against religious discrimination in Title VII of the Civil Rights Act of 1964 and emergency use authorization provisions of federal law.

The nurses and other workers all cite the connection between the development and testing of COVID-19 vaccines and the fetal cell lines PER.C6, which was used for the production of the Johnson & Johnson vaccine, and HEK-293, which was used to test the Pfizer and Moderna vaccines.

According to NorthShore, administrators received about 700 requests for exemptions to its mandatory vaccination policy after it was announced in August. About 400 employees appealed the denials, Marc Jacobs, attorney for the health system, said in response to the motion for a temporary restraining order.

"In the end, a majority of the appeals received were granted, including those of all 14 Plaintiffs," Jacobs said. "However, because of the decision that having unvaccinated employees onsite was unnecessarily risky and imposed an undue hardship on NorthShore, those granted exemptions and who do not meet the October 30, 2021 deadline to be fully vaccinated are not terminated, but rather will be placed on a leave of absence and required to use paid time off. They will have until year-end to be vaccinated."

Earlier: NorthShore Staff Sue Over Religious Exemptions To Vaccine Mandate

Other hospital systems have asked employees to attest that their religious objections are consistent by affirming that they do not use many common over-the-counter or prescription medications that were also tested or developed using fetal cell lines.

Jacobs said the case, like nearly every other lawsuit that alleges workplace discrimination and retaliation, can be resolved by money damages if the claims are proven.

In the health system's response to the motion, he argued that "repeated speculation" that the employees would suffer irreparable harm was not enough to justify a temporary restraining order.

"Any injunctive relief herein would put patients, other employees, visitors and the public at risk of COVID-19 and harm as a result of the pandemic. Although that risk may be difficult to assess, the fact remains that NorthShore (not [Jane Does 1-14]) is in the best position to assess that risk," Jacobs said. "Therefore, NorthShore properly and lawfully is taking all measures possible to mitigate that risk and danger. This Court should not enjoin its actions to protect people’s lives."

In an oral ruling Friday granting the restraining order, Kness said the nurses and other employees cannot be fired and cannot be put on unpaid leave.

“The hospital’s going to have to keep paying them," Kness said, according to the Chicago Tribune. "If you wish to require them to show up to work and use PPE and go through testing because you need the help and you don’t want to pay them to be off site, that’s up to the hospital.”

According to NorthShore, not all of the 14 Jane Does have complied with the requirements for unvaccinated employees, which include required weekly testing for the COVID-19 virus. Jacobs said one of them has never reported for testing at all.

The next hearing in the case is set for Nov. 16. Kness asked attorneys for both parties to consider addressing the question of potential harms, accommodations and whether the workers may continue using pseudonyms.

Horatio Mihet, attorney for the Jane Does and chief litigation counsel of Florida-based Liberty Counsel, cited comments on news websites and social media such as, "I would not want an anti vaxx anti science nurse to treat me. They must go," in arguing that the 11 nurses and three other workers should not have to use their real names in court.

Mihet said his clients "fear that public disclosure of their identities and participation in this lawsuit with subject them to threats, harassment, intimidation, scorn and retaliation, both in work and in public."

Related: Health Care Right Of Conscience Change Headed To Governor's Desk