NorthShore vaccine mandate challenge faces federal judge


EVANSTON, IL – A federal judge hearing a challenge to NorthShore University HealthSystem’s COVID-19 vaccine mandate plans to issue an order in the coming days on whether to continue to prevent the group of six hospitals from dumping employees who do not comply with his political vaccination.

Lawyers for a group of 14 unvaccinated NorthShore employees and the Evanston-based health care provider appeared in a telephone hearing Tuesday before U.S. District Judge John Kness.

Kness has extended a temporary restraining order it granted in the case last month that prevents NorthShore from sacking its unvaccinated employees at this time, but has yet to determine whether it needs to issue a preliminary injunction .

The judge has yet to rule on whether to grant class certification to workers – 11 nurses, a patient access representative, a senior applications analyst and a pharmacy technician – or allow them to continue to process the case under the pseudonym. Jane Doe.

Kness said he plans to issue a written decision “as soon as possible” – more than a few days but significantly less than two weeks, the judge said – before questioning lawyers for the hospital and its employees .

Horatio Mihet, chief legal counsel to Liberty Counsel, represented plaintiffs Jane Doe 1-14 at Tuesday’s hearing.

Mihet argued that NorthShore’s “ruthless, extreme and categorically blind” approach violated both state and federal law, claiming that its handling of requests for religious exemptions from its vaccine mandate and l The lack of a testing option for unvaccinated workers made it an “extreme outlier” from other hospital groups.

Citing the Holocaust, Mihet said NorthShore had suggested he would give unvaccinated employees “badges, or little yellow stars or something,” if he was ever ordered to allow unvaccinated staff to return to the hospital. ground.

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

NorthShore had yet to provide any evidence, said Mihet, which shows unvaccinated staff would be more likely to transmit COVID-19 to patients than those who are not.

“For that reason alone,” he said, “NorthShore’s draconian policy cannot be sustained. “

And, while employment law cases are usually resolved with damages at the end of the litigation rather than an injunction at the start, Mihet said this case is different.

“Here we have medical treatment that cannot be reversed,” he said. “So while the humiliating work environment may one day be corrected, when you finally get a judgment against the law-breaking employer, here this vaccine will forever burn the conscience of the person being forced to take it.”

Moreover, if Kness allowed NorthShore to go ahead and apply its mandate to unvaccinated staff, the nurses’ lawyer warned, it would ensure all other hospitals follow suit.

The lawyer also suggested that changes to the implementation of NorthShore’s vaccination mandate were driven more by legal challenge than medical considerations. He said the hospital group reneged on a previous commitment to exempt pregnant women from the mandate until the end of their maternity leave.

“It’s just shocking to me that NorthShore is pushing its pregnant pregnant women onto the streets in order to make a point in this case,” Mihet said, drawing a reprimand from the judge, who asked the plaintiff’s lawyer to limit his remarks to “real argument.”

NorthShore lawyer Marc Jacobs said unvaccinated NorthShore employees are no longer allowed to work in person at its facilities, although three unvaccinated doctors are legally required to stay for continuity of care purposes while their patients are transferred to the care of other doctors.

These doctors are fired because of their refusal to be vaccinated, according to court documents.

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

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

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

The hospitals lawyer argued that NorthShore would face much greater risk of harm – including health risks and legal liability – if Kness granted an injunction than nurses and other staff would if the judge refused to do so.

“The harm to NorthShore would be substantial,” Jacobs said. “This would force NorthShore, in his opinion, to violate his mission if he was forced to allow any other unvaccinated team member to return to duty and be on the premises.”

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

With more than 1,000 open positions, NorthShore faces a significant labor shortage and wage inflation, and it cannot afford the cost of putting all of its nearly 450 employees on paid leave. appealed the denial of their request for religious exemptions, Jacobs said in a court filing.

“In addition, NorthShore will have no choice but to discontinue certain patient services, adjust the hours of operation of certain establishments or reinstate unvaccinated employees to their current roles, including clinical settings” , said Jacobs, “exposing NorthShore, his patients and members of his team. at the very risks that he sought to mitigate with the vaccination policy. ”

While the 14 still anonymous complainants said they were opposed to the COVID-19 vaccination due to the role of fetal cell lines in medical research, more than 60% of the exemption requests did not include any reference to the abortion, according to NorthShore lawyer David Dahlquist, opposing the granting of class certification to employees.

“For example,” said Dahlquist, “a putative group member requested a religious exemption based on his belief that” natural selection must be allowed [and] I am at peace if God decides that it is my time. ‘”

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