Dr. T. v. Alexander-Scott

• Decision Date: 07 January 2022
• Docket Number: C.A. No. 1:21-cv-00387-MSM-LDA
• Citation: 579 F.Supp.3d 271
• Parties: DR. T., Nurse T., Hosp. Clerk M., Dr. J., and Health Unit Coordinator L., Custodian S., Technician H., and Nurse R., Plaintiffs, v. Nicole ALEXANDER-SCOTT, in her official capacity as Director of the Rhode Island Department of Health, and Daniel J. McKee in his official capacity as Governor of the State of Rhode Island, Defendants.
• Court: U.S. District Court — District of Rhode Island

579 F.Supp.3d 271

DR. T., Nurse T., Hosp. Clerk M., Dr. J., and Health Unit Coordinator L., Custodian S., Technician H., and Nurse R., Plaintiffs,

v.Nicole ALEXANDER-SCOTT, in her official capacity as Director of the Rhode Island Department of Health, and Daniel J. McKee in his official capacity as Governor of the State of Rhode Island, Defendants.

C.A. No. 1:21-cv-00387-MSM-LDA

United States District Court, D. Rhode Island.

Signed January 7, 2022

Joseph S. Larisa, Jr., Larisa Law, Providence, RI, for Plaintiffs Dr. T., Hosp Clerk M, Health Unit Coordinator L, Nurse T., Dr. J, Custodian S, Technician H, Nurse R.

Bruce D. Todesco, RI Department of Health, Providence, RI, Michael W. Field, Department of Attorney General, Civil Division, Providence, RI, for Defendant Nicole Alexander-Scott.

Michael W. Field, Department of Attorney General, Civil Division, Providence, RI, for Defendant Daniel J. McKee.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

I. INTRODUCTION

The Court now considers the plaintiffs’ Motion for a Preliminary Injunction (ECF No. 2) on an expanded record, having previously denied their request for a temporary restraining order.

The plaintiffs, all health care workers, seek injunctive relief against the enforcement of Rhode Island Department of Health ("RIDOH") Emergency Regulation 216-RICR-20-15-8, ("Regulation") promulgated August 17, 2021, which requires all healthcare workers, except those meeting a very narrow medical exception, to be vaccinated against COVID-19 by October 1, 2021. The plaintiffs claim that, because this Regulation does not include an opportunity for a healthcare worker to obtain a religious exemption to vaccination, it violates the United States Constitution and Title VII of the Civil Rights Act of 1964.

The plaintiffs ask the Court to enjoin the RIDOH from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before the Regulation; that the RIDOH be barred from interfering with the granting of religious exemptions going forward; and from taking any disciplinary action against the plaintiffs for seeking or having obtained a religious exemption.

For the following reasons, the Court DENIES the plaintiffs’ Motion.

II. BACKGROUND

All findings of facts are based upon the affidavits and other exhibits provided by the parties. The Court is aware of news reports that, in light of the rapidly spreading Omicron variant of COVID-19 and the everchanging nature of the pandemic, the RIDOH has issued new guidance allowing for the possibility of certain COVID-19 positive healthcare workers to work at a healthcare facility if it is determined that the facility is facing a crisis-level staffing shortage. No parties, however, have sought to reopen or supplement the record since this RIDOH announcement or to otherwise argue how it may support their position. The Court will therefore proceed to consider the plaintiffs’ motion on the existing record, which is as follows.

Since early 2020, the SARS-CoV-2 virus responsible for the COVID-19 disease has spread across the world causing a global health emergency. At the time of the parties’ submissions, COVID-19 and/or its variants has caused the deaths of over 2,700 Rhode Islanders; more than 650,000 Americans, and upwards of 4.4 million people worldwide. (ECF No. 16-2, Affidavit of Dr. James McDonald ("McDonald Affidavit") ¶ 9.¹ At the time of this writing, those numbers have grown significantly.

In mid-December 2020, after a year of public health mitigation measures such as social distancing, quarantining, mask wearing, the U.S. Food and Drug Administration authorized vaccines for emergency use. Id. ¶ 22. On January 21, 2021, about a month after the COVID-19 vaccines became available, Rhode Island had a 7-day percent positive rate of 5.0% (which was down from 6.6% the previous week), but its average of 201.6 daily cases per 100,000 people in the last seven days was the second highest in the United States. Id. ¶ 29. Approximately two months later, on March 17, 2021, Rhode Island's seven-day percent positive rate decreased to 2.0%. Id. ¶ 30. The Director of the RIDOH, Dr. Nicole Alexander-Scott, affirms to "a reasonable degree of medical certainty, vaccination was the primary reason for this decrease." (ECF No. 16-1, Affidavit of Dr. Nicole Alexander-Scott ("Alexander-Scott Affidavit") ¶ 29.)

On January 1, 2021, Rhode Island had 776 positive COVID-19 cases, and 452 people hospitalized with COVID-19. McDonald Affidavit ¶ 31a. By May 1, 2021, Rhode Island had 175 positive COVID-19 cases, and 139 COVID-19 hospitalizations; by June 1, 2021, positive COVID-19 cases dropped to 42 and hospitalizations dropped to 47; and by July 1, 2021, COVID-19 cases decreased to 24 and hospitalizations dropped to 23. Id. ¶ 31. But this general downward trend that Rhode Island and much of the United States experienced during the first seven months of 2021 halted in August. Id. ¶ 32. By August 1, 2021, the number of COVID-19 positive cases increased to 90 and hospitalizations increased to 46; by August 15, 2021, COVID-19 positive cases climbed to 162 and hospitalizations to 102; and by August 26, 2021, COVID-19 positive cases reach 337 and hospitalizations 127. Id. ¶ 32.

Health care services have been particularly affected. Scientific research shows health care workers have higher rates of infection than people in other fields. Alexander-Scott Affidavit ¶ 15. With health care workers having higher rates of infection, it follows that patients interacting with them have a threefold increased risk of COVID-19, and the household members of patients interacting with health care professionals have a twofold increased risk of COVID-19. Id. ¶ 16. As of October 11, 2021, according to the CDC, 596,027 health care personnel in the United States have contracted COVID-19 and 1,939 have died. Id. The CDC has recommended that all health care personnel receive the COVID-19 vaccine, since they "continue to be on the front line of the nation's fight against COVID-19" by "providing critical care to those who are or might be infected with the virus that causes COVID-19." Id. ¶ 19.

SARS-CoV-2, like other viruses, mutates over time. McDonald Affidavit ¶ 15. These mutations change the properties of the original strain and affect the ability of the virus to be transmitted from person to person and how virulent (or deadly) the virus may be. Id. By early August 2021—the same time as the number of positive cases and hospitalizations began to rise—SARS-CoV-2 had mutated to form what is known as the Delta variant which has become the dominant strain in Rhode Island and the United States.² Id. ¶ 17. Patients with the Delta variant may have a viral load over 1,000 times higher than the original SARS-CoV-2 strain, meaning such patients have over 1,000 times more copies of the virus within them as compared to the original strain. Id. Medical and scientific journals have also reported that the Delta variant is 6 to 8 times more contagious than the original strain, and therefore, more likely to cause infections even in fully vaccinated individuals. Id. Notably, however, infections are even more likely, with more serious health consequences, in unvaccinated persons. Id.

Based on these factors and statistics, as well as the upward trend in COVID-19 cases and hospitalizations, on August 17, 2021, the RIDOH promulgated the Regulation at issue. Specifically, it required all "health care workers" and all "health care providers" to be vaccinated against COVID-19 by October 1, 2021, except those with a medical exemption. 216-RICR-20-15-8.

Two days later, on August 19, 2021, Governor Daniel J. McKee further responded to the increased cases and hospitalizations caused by the Delta variant by declaring a state of emergency. Governor Daniel J. McKee, Executive Order 21-86, Aug. 19, 2021, available at https://governor.ri.gov/executive-orders/executive-order-21-86. The Declaration of Disaster Emergency was punctuated by various findings, including that hospitals’ emergency departments were exceeding capacity; that hospitalizations and deaths have consistently increased since July 4, 2021; and that a field hospital in Cranston would be reopened to accommodate the possible surge caused by the Delta variant. Id.

It noteworthy that while the Regulation, 216-RICR-20-15-8, was new, the requirement that health care workers vaccinate against known diseases preexists the COVID-19 pandemic. In 2002, RIDOH promulgated Regulation 216-RICR-20-15-7, entitled "Immunization, Testing, and Health Screening for Health Care Workers." This regulation requires evidence of immunity for health care workers for Measles, Mumps, Rubella, Varicella (chickenpox ), Tetanus, Diphtheria, Pertussis, and Tuberculosis. Accordingly, to work as a health care worker in Rhode Island, a health care worker must have immunity from these diseases. Like the COVID-19 vaccine, only a medical exemption is expressed in 216-RICR-20-15-7, and like COVID-19, the purpose of 216-RICR20-15-7 is not only to protect health care workers but also people being treated by health care workers, and the broader community. Alexander-Scott Affidavit ¶ 12. As such, Rhode Island has a history of requiring vaccinations for its health care workers, without a religious exception.

In deciding to issue the Regulation, the RIDOH determined that reducing the number of unvaccinated personnel who can expose vulnerable patients to a potentially deadly disease in the health care setting is of utmost importance. McDonald Affidavit ¶ 47. In the fall and winter seasons, during which the weather becomes colder, and people gather indoors, the likelihood of spread of the highly contagious Delta variant increases. Alexander-Scott Affidavit ¶ 22. Additionally, as cold and flu season has arrived, the varying symptoms of COVID-19 (e.g., cough, fever, fatigue, muscle or body aches, headache, sore throat,...