Hospital’s unvaccinated workers sue over mandate
Akron Children’s Hospital is “confident” that its firing of dozens of unvaccinated employees will withstand a federal class action lawsuit.
And the attorney making a First Amendment issue of the matter is already preparing for an appeal.
Akron attorney Warner Mendenhall filed the lawsuit March 3 in the Ohio Northern District Court. Judge Charles Esque Fleming, who was appointed by President Joe Biden in February, is assigned to the case at the federal courthouse in Cleveland. His courtroom deputy confirmed Wednesday that no dates have been set for initial briefs or hearings.
The lawsuit names two lead plaintiffs: certified surgical technologist Brian Tessane and help desk worker Richard Brimer. Tessane worked five years at Akron Children’s Hospital and Tessane for two years before each was let go in late January, about two weeks after missing the hospital’s deadline for all staff members to get their initial COVID-19 vaccine shot.
The plaintiffs, according to the lawsuit, were denied “reasonable accommodations” due to their Christian faith. Mendenhall said his clients were ultimately forced “to choose between violating their sincerely held religious beliefs or losing their jobs.”
Hospitals took lead on enforcing vaccine mandates
Sharona Hoffam, a Case Western Reserve University professor of law and bioethics, said ‘there have been challenges to every mandate” imposed during the pandemic.
Few have succeeded. And challenging requirements imposed by a private employer, in accordance with federal rules, can be particularly difficult to argue.
The U.S. Supreme Court in January struck down an attempt by the Biden administration to mandate COVID-19 vaccines in the private sector. The 7-6 ruling, however, upheld the federal government’s ability to withhold funding from health care organizations with unvaccinated employees.
After the Centers for Disease Control and Prevention issued the order and before the Supreme Court ruled, health care organizations across the country set their own deadlines amid a surge of hospitalizations linked to the omicron variant.
Summa Health System was among the first in the region to enforce a selfimposed vaccine deadline for its workers, firing seven employees by the end of 2021. By the end of January, the Cleveland Clinic placed 450 of its 65,000 employees systemwide on unpaid leave.
Akron Children’s originally proposed a policy that would have allowed unvaccinated employees to test regularly. The
pediatric hospital then required all employees to get a first shot by Jan. 11.
In early February, Children’s announced that 66 employees, including Tessane and Brimer, would be placed on unpaid leave and fired by the end of the month if still out of compliance.
“Akron Children’s Hospital is confident that our procedures for reviewing exemption requests from our COVID vaccination requirement are appropriate and legal,” Children’s spokeswoman Laurie Schueler said Wednesday. “A vaccinated work force is the best protection we can offer our patients, many of whom are vulnerable and not eligible for vaccination, and is the best way to move beyond the pandemic.”
Hoffman said the courts have long upheld the right of private employers to make special demands of their employees, such as dress codes or no-smoking policies. That Akron Children’s was implementing a vaccine mandate “in accordance with a CMS order” makes the action “doubly fine,” she said.
More than their jobs
Mendenhall said his lawsuit will cover “all persons who requested reasonable accommodations from the SARSCOV-2 injection policy due to their sincerely held religious beliefs and who were summarily denied … absent a meaningful interactive process to determine whether reasonable accommodations could be made.”
He speculates that there could be hundreds of employees either fired or forced to get what he characterizes as an “experimental” shot after their religious exemptions were rejected.
“Based on a violation of Plaintiff’s First Amendment right to freely exercise their religion,” the attorney is asking a federal judge to issue a temporary injunction. In addition to attorney fees, Mendenhall is seeking “damages including back pay, reinstatement or front pay, pre-judgment and post-judgment interest, punitive damages, and compensatory damages as applicable.”
But beyond serving his clients, Mendenhall
said he wants “to establish government actor doctrine in the Sixth Circuit” federal courts covering Michigan, Ohio, Kentucky and Tennessee. The doctrine considers private businesses like Akron Children’s Hospital as extensions of state or federal governments that impose what he sees as unconstitutional restrictions.
He’s applying the same strategy to another case, which the Ohio Supreme Court on March 23 agreed to hear on appeal. That case, which Mendenhall lost in common pleas and state appellate courts in Franklin County, involves Akron’s Highland Tavern suing Ohio Gov. Mike Dewine and the Ohio Liquor Control Commission for enforcing a 10 p.m. bar curfew in the early months of the pandemic.
Highland Tavern was a repeat offender of the new rule, receiving three citations in August 2020.
Along with reinstatement of the liquor permit, Mendenhall said he hopes to set a similar precedent to the one he’s after in the class action lawsuit against Children’s Hospital.
“There’s a theory in this case, kind of like the one in the Highland Tavern case, that I’m trying to pursue,” he said. “And it’s essentially that … Children’s Hospital was coerced by the federal government to impose the vaccine mandate. Because of that coercion, [the private hospital] is actually standing in the shoes of the federal government.
“So, we can sue directly under the First Amendment.”
“They weren’t standing in for the federal government,” Hoffman said of the “government actor approach” to challenging mandates. “They were complying with rules.”
“Certainly in August of 2020, [state government] had the power under the public health laws of the state to respond to the pandemic, to issue orders that were designed to safeguard the public and to enforce them through punishment,” said Hoffman. “And that’s what the government did.”