Together Emps. v. Mass Gen. Brigham Inc.

• Citation: 573 F.Supp.3d 412
• Decision Date: 10 November 2021
• Docket Number: Civil Action No. 21-11686-FDS
• Parties: TOGETHER EMPLOYEES, by individual representatives, Roberta Lancione, Joyce Miller, Maria DiFronzo, Michael Saccoccio, Elizabeth Bigger, Natasha DiCicco, Nicholas Arno, and Ruben Almeida, Plaintiffs, v. MASS GENERAL BRIGHAM INCORPORATED, Defendant.
• Court: U.S. District Court — District of Massachusetts

573 F.Supp.3d 412

TOGETHER EMPLOYEES, by individual representatives, Roberta Lancione, Joyce Miller, Maria DiFronzo, Michael Saccoccio, Elizabeth Bigger, Natasha DiCicco, Nicholas Arno, and Ruben Almeida, Plaintiffs,

v.MASS GENERAL BRIGHAM INCORPORATED, Defendant.

Civil Action No. 21-11686-FDS

United States District Court, D. Massachusetts.

Signed November 10, 2021

As Amended November 12, 2021

Lauren Elizabeth Bradford, Lincoln, MA, Ryan P. McLane, McLane & McLane, LLC, Feeding Hills, MA, for Plaintiffs.

Kiley M. Belliveau, Meghan C. Cooper, Peabody & Arnold LLP, Dawn Reddy Solowey, Katherine E. Perrelli, Kristin G. McGurn, Lynn A. Kappelman, Seyfarth Shaw, LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

CORRECTED

SAYLOR, C.J.

This is a case challenging a mandatory COVID-19 vaccination

policy. Defendant Mass General Brigham, Inc. ("MGB") is a Massachusetts corporation and major hospital and healthcare network that operates, among other facilities, Massachusetts General Hospital and Brigham and Women's Hospital in Boston. Plaintiff Together Employees is an unincorporated association of 229 employees of MGB who were denied a religious or medical exemption from a COVID-19 vaccination policy. The remaining plaintiffs are eight individual employees whose exemption requests were denied.

On June 24, 2021, MGB announced a mandatory COVID-19 vaccination

policy for all its employees. It later set a deadline for that policy, providing that non-complying employees would be placed on unpaid leave on October 20, 2021, and thereafter terminated on November 5, 2021.

On October 17, 2021, plaintiffs brought this lawsuit, alleging claims of discrimination and retaliation under Title VII and the ADA and seeking to enjoin MGB from enforcing its vaccination

policy. The Court held hearings on plaintiffs’ motion for preliminary injunction on October 20 and November 4, 2021, and orally denied the motion from the bench. The following memorandum sets forth the reasoning of the Court in greater detail.

I. Background

Except where noted, the Court relies on the parties’ briefs, affidavits, documentary evidence, and oral argument to decide the present motion.

A. Factual Background

Plaintiff Together Employees is an unincorporated association of 229 employees who were denied a religious or medical exemption from the MGB COVID-19 vaccination

policy. The remaining plaintiffs are individual employees of MGB who were denied religious or medical accommodations. (Pl. Exs. J-M; O-R).¹

Defendant Mass General Brigham, Inc. is a Massachusetts corporation with a principal place of business in Massachusetts. MGB owns and operates hospitals and other facilities throughout the Commonwealth of Massachusetts. (Klompas Dec. ¶¶ 5-7). Among other things, it owns and operates Massachusetts General Hospital; Brigham and Women's Hospital; Faulkner Hospital; McLean Hospital; Massachusetts Eye and Ear Hospital; Newton-Wellesley Hospital; Cooley Dickinson Hospital; and Spaulding Rehabilitation Hospital. Each year, MGB provides medical care for 1.5 million patients. (Id. ¶ 6).

1. COVID-19 Pandemic

COVID-19 is a contagious viral disease that can cause serious illness and death. (Id. ¶ 19). As of this writing, approximately 750,000 Americans have died from the disease. CTR. FOR DISEASE CONTROL & PREVENTION , COVID-19 MORTALITY OVERVIEW : PROVISIONAL DEATH COUNTS FOR CORONAVIRUS DISEASE 2019 (2021) (last updated Nov. 3, 2021). In the summer of 2021, after several months of declining infection rate, the highly contagious Delta variant of the virus caused a significant further outbreak.

In 2020 and early 2021, three COVID-19 vaccines were approved by the Food and Drug Administration as safe and effective. The three vaccines were developed and produced by Pfizer, Moderna, and Johnson & Johnson. U.S. FOOD & DRUG ADMIN ., COVID-19 VACCINES (2021) (last updated Oct. 29, 2021). The Pfizer and Moderna vaccines employ messenger RNA (mRNA) technology; the Johnson & Johnson does not. (See id. ). Both the federal and Massachusetts state governments prioritized the early vaccination

of all hospital workers, recognizing the importance of protecting the healthcare workforce during the pandemic. (Klompas Dec. ¶ 25).

2. MGB's COVID-19 Vaccination

Policy

In June 2021, MGB announced it would require its employees to obtain a COVID-19 vaccination

. (Pl. Ex. A). In light of the outbreak of COVID-19 caused by the Delta variant, MGB determined that such a vaccination policy was critical to keeping safe its medically vulnerable patient population, employees, and visitors. (Klompas Dec. ¶¶ 20-21, 27). MGB required that employees receive the COVID-19 vaccine by October 15, 2021. (Id. ¶ 13). Employees were told that noncompliance with the policy would result in unpaid leave, and ultimately, termination. The announcement also explained that certain exemptions would be available for medical or religious reasons. (Id. ).

Employees seeking a religious exemption were required to fill out an online form. (Id. ). The form asked several questions and contained a text box stating:

In the space provided, please (1) identify your sincerely held religious belief, practice or observance and (2) explain why it prevents you from receiving a COVID-19 vaccine. Please note that you may be required to provide additional information or supporting documentation to support your request for an exemption.

(Pl. Ex. C). The online form did not provide an option to attach supporting documentation. However, the text box response field did not have a character limit, and the instructions noted that "the text box would expand as needed." (Nichols Dec. ¶ 9). The online form advised employees that they "may be required to provide additional information or supporting documentation to support [their] request for an exemption." (Id. ¶ 8).

Employees seeking a medical exemption were provided a form to be completed by a physician. (Hashimoto Dec. ¶ 6). The exemption form contained several check boxes to be filled by the employee's physician to indicate whether the employee had one of several conditions indicated by the Centers for Disease Control (CDC) that might merit a deferral of vaccination

. (Id. ¶ 7). One of the check boxes asked the physician to identify "other medical reasons," and instructed the physician to explain his or her reasoning elsewhere on the form. (Id. ¶ 11).

MGB created two separate committees to review requests for exemption. The first committee, the Religious Exemption Review Committee, was "led by a senior attorney in MGB's Office of the General Counsel and comprised of trained Human Resources professionals." (Nichols Dep. ¶¶ 11, 19). The members of the committee were "trained in responding to accommodation requests and given additional training in responding to religious exemption requests." (Id. ¶¶ 10, 19). Employees who raised "substantive religious objection[s]" to the vaccination

policy received follow-up questions from the committee, often individualized to the particular objection of the employee. (Id. ¶¶ 25-28). Employees who received follow-up questions were directed to send their responses to a dedicated MGB e-mail box and were free to submit whatever supporting documentation they wanted. (Id. ¶ 29). In some cases, the committee sent additional follow-up questions to employees after determining more information was needed. (Id. ¶ 31).

The second committee, the Medical Exemption Review Committee, was directed by Dr. Dean Hashimoto, the Chief Medical Officer for Workplace Health and Wellness. (Hashimoto Dec. ¶ 3). MGB assembled two panels to review these requests: one focused on occupational health, and the other focused on infection control. (Id. ¶¶ 13-15). The Occupational Health Clinical Panel was comprised of three nurse practitioners serving as occupational health clinical directors. (Id. ¶ 14). The Infection Control Panel was comprised of five physicians with expertise in infection control and disease. (Id. ¶ 15). The two panels worked together with Dr. Hashimoto to develop an interactive process. (Id. ¶¶ 24-26). The Occupational Health Clinical Panel would review exemption requests with Human Resources when accommodation issues arose, and would consult as needed with medical experts at MGB. (Id. ¶¶ 25, 28). When the panels had additional questions for employees or their physicians, they would solicit additional information by e-mail. (Id. ¶¶ 30-31).

3. Plaintiffs’ Requested Accommodations

The eight named individual plaintiffs requested exemptions and accommodations from MGB's COVID-19 vaccination

policy. Either the Religious Exemption Review Committee, the Medical Exemption Review Committee, or both denied all plaintiffs’ requests. (Pl. Exs. O-R). Summarized below are each plaintiff's objections to the COVID-19 vaccine and the committees’ relevant responses.²

Elizabeth Bigger is a physician specializing in oncology. She requested a religious exemption, contending that she is a Christian who opposes abortion and that she objects to the use of fetal cell lines in the development of the vaccines. (Def. Ex. 29). The Religious Exemption Review Committee denied her request. It stated, among other things, that (1) the Pfizer and Moderna vaccines "did not use a fetal cell line to produce and manufacture the vaccine"; (2) numerous religious organizations publicly support COVID-19 vaccination

; and (3) she had a history of receiving other vaccines in the past without objection. (Def. Exs. 30-32).

Natasha DiCicco is a technical supervisor in radiology. She requested a religious exemption, contending that according to her religious beliefs she should "treat [her] body as a temple and refrain from putting anything into [her] body that [she has] moral objections or health concerns with." (Def. Ex. 33). The committee denied her request, noting that she did not request an exemption from taking the influenza

vaccine. (Def. Exs. 34-36).

Nicholas Arno is an electrician. He...