Unvaccinated NorthShore Staff Appeal Order Allowing Their Firing

CHICAGO — Fourteen unvaccinated healthcare workers have appealed a judge's ruling that allows them to be fired for defying their employer's policy that requires all workers at its hospitals to be vaccinated against COVID-19.

The group of NorthShore University HealthSystem staffers — 11 nurses, a pharmacy tech, an application analyst and a patient access representative — filed their federal civil rights lawsuit in October ahead of a vaccination deadline imposed by the six-hospital conglomerate.

The nurses and other workers allege that they have suffered religious discrimination for their decisions to decline COVID-19 vaccines. According to court filings from their attorneys, they believe receiving the vaccine would constitute a violation of their Christian faith, citing the use of fetal cell lines in medical research.

U.S. District Judge John Kness, who was appointed to the bench in 2019 by former President Donald Trump, initially granted a temporary restraining order blocking NorthShore from terminating the employees.

But, after listening to arguments from both sides at a hearing last month, Kness allowed that temporary order to expire and rejected the employees request for a preliminary injunction preventing the workers' firing while the case is still pending.

Kness's 27-page order cleared the way for the workers to be fired. And, if they were later found to have been discriminated against, they could then be compensated.

But the judge granted their request to proceed anonymously, saying that he was convinced that they were at risk of "ostracism, humiliation and retaliation" if their names were to be publicly revealed.

"Jane Doe 1-14" are represented by Orlando, Florida-based nonprofit Liberty Counsel. According to its website, it is a Christian ministry founded in 1989 by two attorneys who are married to each other. The Southern Poverty Law Center has designated it as a hate group in connection with its anti-gay advocacy.

Horatio Mihet, the group's chief litigation counsel, argued that — contrary to Kness's ruling — the hospital workers will suffer irreparable harm if NorthShore is allowed to enforce its policy.

"There are some harms that no amount of money can fix," Mihet said, in an emergency motion before the 7th Circuit seeking to block the mandate while the case is being appealed.

One of his anonymous clients, he alleged, has "faced repeated harassment and stigmatization from her manager because of her objection to the vaccine, and her diagnosed anxiety would only be exacerbated by being fired for abiding by her religious beliefs."

Another of the Jane Doe plaintiffs views her job as her life's "calling," Mihet said, so having to depart her job at NorthShore "not only means the loss of income but also loss of meaning and close relationships with co-workers and parents."

When weighing the balance of harms to both sides, Mihet said neither NorthShore nor the public would be harmed if the appellate court issued an injunction preventing the hospital group from implementing its mandatory vaccine policy.

"The balance of harms tips strongly in Plaintiffs’ favor. No doubt an injunction pending appeal would temporarily interfere with NorthShore’s extreme and unscientific goal of coerced, 100% vaccination for employees. And, to be sure, NorthShore has a legitimate interest in preventing the transmission of COVID-19 at its facilities," Mihet said. "But NorthShore, the federal government, the CDC and scientific research are all in agreement that vaccination is not known to reduce COVID-19 transmissibility."

The CDC's website contradicts Mihet's claims. While vaccines do not eliminate breakthrough cases, especially in areas of high community transmission, they have been shown to reduce the rate by which the virus spreads, according to federal health officials.

"Evidence suggests the U.S. COVID-19 vaccination program has substantially reduced the burden of disease in the United States by preventing serious illness in fully vaccinated people and interrupting chains of transmission," according to a September brief from the CDC. "Vaccinated people can still become infected and have the potential to spread the virus to others, although at much lower rates than unvaccinated people."

While acknowledging that research into coronavirus transmissibility is continuing, a CDC brief from the following month had similar conclusions.

"Multiple studies in different settings have consistently shown that infection with SARS-CoV-2 and vaccination each result in a low risk of subsequent infection with antigenically similar variants for at least 6 months," it said. "Numerous immunologic studies and a growing number of epidemiologic studies have shown that vaccinating previously infected individuals significantly enhances their immune response and effectively reduces the risk of subsequent infection, including in the setting of increased circulation of more infectious variants."

On Friday, Mihet also asked the 7th Circuit for permission for his clients to continue proceeding using Jane Doe pseudonyms. But on Monday, the federal appellate court rejected that request.

"Anonymous litigation is generally disfavored," the judges said in an order, "and the plaintiffs have not justified anonymity in this appeal."

Patch requested more information from the nurses' attorneys about whether they plan to proceed with the litigation using their actual names, and asked NorthShore spokespeople for more information about claims it had already begun firing employees with religious exemptions and statistics about how many of its staff had so far been terminated for violations of the mandate. A NorthShore spokesperson said the organization could not comment on issues pending litigation and attorneys for the employees have not responded.

Also on Monday, the U.S. Supreme Court rejected a challenge to the state of New York's policy that does not allow religious exemptions to its vaccine mandate for healthcare workers.

A hearing was held before Kness, the trial court judge, Tuesday to address how to proceed with the litigation while the appeal is pending.

At the hearing, Mihet said his clients were considering voluntarily dismissing their appeal because the 7th Circuit declined to grant an injunction blocking their firing while the appeal was being heard.

Related:

• NorthShore Nurses Who Refuse Vaccine Can Be Fired, Judge Rules
• Vaccine Mandate Challenge Argued Before Federal Judge
• Judge Blocks Firing Of NorthShore Nurses Who Decline Vaccination
• NorthShore Staff Sue Over Religious Exemptions To Vaccine Mandate

UPDATE: Attorneys for Jane Does 1-14 dismissed their appeal voluntarily on Dec. 15, before the 7th Circuit was able to issue a ruling, and were taxed with the cost of appeal, according to a court order filed the following day.