NorthShore Vaccine Mandate Challenge Goes Before Federal Judge

EVANSTON, IL — A federal judge will decide in the coming days whether to let NorthShore University HealthSystem fire 14 unvaccinated employees. Attorneys for the six-hospital group and the employees challenging its COVID-19 vaccine mandate appeared by telephone for a court hearing Tuesday before U.S. District Judge John Kness.

Kness extended a temporary restraining order that he granted in the case last month, preventing NorthShore from terminating its unvaccinated staffers for the time being, but he has yet to determine whether to issue a preliminary injunction.

The judge also has yet to rule on whether to grant class certification to the workers — 11 nurses, a patient access representative, a senior application analyst and a pharmacy technician — or allow them to proceed with the case under pseudonyms.

Kness said he anticipated delivering a written ruling "in short order" — more than a couple days but substantially less than two weeks, the judge said — before questioning attorneys for the hospital and its employees.

Horatio Mihet, chief litigation counsel for Liberty Counsel, represented plaintiffs Jane Doe 1-14 at Tuesday's hearing.

Mihet argued that NorthShore's "unforgiving, extreme and categorically indiscriminate approach" violates both state and federal law. The health system's handling of religious exemptions and lack of a testing option for unvaccinated workers makes it an "extreme outlier" when compared to other hospital groups, he added.

Invoking the Holocaust, Mihet said NorthShore had suggested it would give unvaccinated employees "badges, or little yellow stars or something," if it was ever ordered to allow unvaccinated staff back on the floor.

Liberty Counsel is an Orlando, Florida-based Christian ministry founded in 1989 by a husband-and-wife team of attorneys. It has been designated as a hate group by the Southern Poverty Law Center for its anti-LGBT advocacy.

NorthShore had yet to provide any evidence, Mihet said, that shows unvaccinated staff would be more likely to transmit COVID-19 to patients than those who are vaccinated.

"For that reason alone," he said, "NorthShore's draconian policy cannot be sustained."

And, while employment law cases are generally resolved with monetary damages at the end of litigation rather than injunctive relief at the start of it, Mihet said this case is different.

"Here, we have a medical treatment that cannot be undone," he said. "So while the humiliating work environment can be remedied one day, when you finally get a judgment against the law-breaking employer, here that vaccine will forever sear the conscience of the person forced to take it."

Plus, if Kness were to allow NorthShore to go ahead and enforce its mandate on unvaccinated staff, the nurses' attorney warned, it would ensure that other hospitals would follow suit.

The attorney also suggested changes to the implementation of NorthShore's vaccine mandate had been driven by legal considerations rather than medical ones. He said the hospital group had gone back on an earlier pledge to exempt pregnant women from the mandate until the end of their maternity leave.

"It's just shocking to me that NorthShore would shove its pregnant expecting mothers out on the street in order to make a point in this case," Mihet said, drawing a rebuke from the judge, who asked that the plaintiff's attorney confine his remarks to "actual argument."

NorthShore attorney Marc Jacobs said unvaccinated employees are no longer permitted to work in-person at health system facilities, although there are three unvaccinated doctors who are legally required to remain for continuity of care purposes while their patients are transitioned to the care of other physicians.

Those doctors are being terminated due to their unwillingness to be vaccinated, according to court filings.

Jacobs said NorthShore's policy does not allow for regular COVID-19 testing to be used as a substitute for vaccinations. He said the vaccine-or-testing schemes permitted under state and federal executive orders provide a minimum safety standard, which is something NorthShore hopes to exceed.

"That's the baseline," Jacobs said. "I don't know about you, but I'm not really interested in getting my medical care from a provider where the bare minimum is good enough."

Jacobs said the vaccination standard should be applied consistently across the health system for all patients, comparing it to other safety standards such as hand-washing and sterilizing equipment.

The hospitals' attorney argued that NorthShore would be subject to far greater harms — including health risks and legal liability — if Kness granted an injunction than the nurses and other staffers would be if the judge declined to do so.

"The harm to NorthShore would be substantial," Jacobs said. "It would require NorthShore, in its view, to violate its mission if it's compelled to allow any other unvaccinated team members to return to their roles and be in premises."

According to a declaration from NorthShore Chief Medical Officer Mahalakhshmi Halasyamani, the health system has handled more than 4,000 COVID-19 related hospitalizations during the pandemic, which claimed the lives of 740 of its patients and at least three employees.

With more than 1,000 open positions, NorthShore faces a significant labor shortage, and it cannot afford to place on paid leave the nearly 450 employees who appealed denials of requests for religious exemptions, Jacobs said in a court filing.

"NorthShore will, in addition, have no option but to discontinue certain patient services, adjust certain facilities' operational hours or reintegrate unvaccinated employees to their current roles, including clinical settings," Jacobs said, "exposing NorthShore, its patients, and team members to the very risks it sought to mitigate with the vaccine policy."

While the 14 as-yet anonymous plaintiffs said they are opposed to COVID-19 vaccination because of the role of fetal cell lines in medical research, more than 60 percent of exemption requests did not include any references to abortion, according to NorthShore attorney David Dahlquist, arguing against granting class certification to the employees.

"For instance," Dahlquist said, "one putative class member requested a religious exemption based on her belief that 'natural selection needs to be allowed [and] I am at peace if God decides it is my time.'"

Related:

• Gov. Pritzker Signs COVID-19 Changes To 'Right Of Conscience' Law
• Judge Blocks Firing Of NorthShore Nurses Who Decline Vaccination
• NorthShore Staff Sue Over Religious Exemptions To Vaccine Mandate