Mass General Brigham employees lose bid to halt unpaid leave over vaccine mandate

Mass General Brigham's offices in Somerville.Lane Turner/Globe Staff

On the day that 229 Mass General Brigham employees were placed on unpaid leave for failing to get a COVID-19 vaccine, a federal judge in Boston on Wednesday denied their motion to prevent the company from enforcing its vaccine mandate.

Employees of the state’s largest hospital system had until Wednesday to show they had received at least one shot or be placed on unpaid leave. Those who have not received their first shot by Nov. 5 now face termination.

A federal lawsuit filed by employees in US District Court on Sunday sought to halt those actions, saying the workers’ disability and religious exemptions had been wrongly denied without explanation or “meaningful interactive process” and “without a showing of undue hardship.”

Wednesday’s ruling by US District Court Judge F. Dennis Saylor only addressed the employees’ request to postpone their unpaid leave, not their claims of discrimination.

“This is a tentative decision based on an incomplete factual record and legal analysis,” Saylor said. “I reserve the right to change my mind. There is much to be considered.”

Another hearing on the matter was tentatively set for Nov. 2. The parties agreed to meet Friday to discuss case logistics.

“The issue, of course, is whether people will lose pay beginning today,” Saylor said. “There certainly is no issue that there is a human cost, or potential costs to this, but of course some of that inevitably falls under the heading of living with the consequences of one’s choices.”

The hospital system, Saylor said, had “a very strong interest in providing the safest possible facility, as well as creating a public perception of safety, which is also important.”

According to the lawsuit, 36 employees sought exemption from the COVID-19 vaccine through medical disabilities and 193 sought exemptions for religious reasons.

The lawsuit names eight of the plaintiffs, including a pregnant woman, a leukemia patient, a man with PTSD, and a physician with “sincerely held religious beliefs,” court records show.

Unlike other lawsuits against other hospitals, Mass General Brigham employees did not argue against the constitutionality of the hospital system’s vaccination mandate, but rather the denial of their medical and religious exemption requests. The employees say the denials were discriminatory and violate protections under the Americans with Disabilities Act and the Civil Rights Act, court records show.

Mass General Brigham, which employs 80,000, said more than 98 percent of its employees are vaccinated.

Workers suing hospitals over vaccine mandates, including those at Mass General Brigham, face uphill battles, public health experts said.

“The person is potentially jeopardizing patients if they refuse to be vaccinated,” said Nicole Huberfeld, a professor of health law, ethics, and human rights at Boston University’s School of Public Health. “So, I actually think that it is quite challenging for them to try to claim that they don’t have to be vaccinated and to keep the job that they have, which seems to be what they are trying to do.”

Additionally, courts tend to view vaccine mandates favorably, experts said.

“Vaccine mandates are just in general seen by courts as safe and effective,” said Michael Ulrich, assistant professor at the BU School of Public Health and School of Law. “That, in and of itself, makes it a tougher hill to climb for people who are challenging them.”

Ulrich added: “When you have a contagious disease that has killed over 700,000 people and you work in the health care sector ... it’s a really difficult task to say, ‘I shouldn’t have to be vaccinated.’ I think in that sense that most judges are going to be very sympathetic to a vaccine mandate.”

Ryan McLane, arguing Wednesday on behalf of the Mass General Brigham employees, said the denials of the disability and religious exemptions were “boilerplate” and the review process by an anonymous committee was “self-serving.”

“It was set up, designed to deny religious accommodations and disability accommodations,” McLane said.

Kiley Belliveau,a lawyer for the hospital system, said the review process was “thorough, thoughtful, and robust.”

An attempt to vaccinate as many hospital employees as possible was not evidence of discrimination, Belliveau said.

“The employees have the freedom to choose to work for Mass General Brigham or another employer,” she said.

The threshold for denying a medical disability exemption is steeper than for religious reasons. By law, if someone has proof that a vaccine would do more harm than good they are supposed to be exempted. But there is no constitutional requirement for religious exemptions for vaccinations, BU’s Huberfeld said.

It wasn’t clear what the religious objections were for the 193 people involved in this case and it was hard not to be skeptical, she said.

It’s become “a phenomenon in the last several months” to ideologically oppose vaccines, Huberfeld said. “Many people are making claims of religious exemptions who never have done so before.”

“Typically in the workplace, people don’t have to provide specifics as to their religious beliefs,” Huberfeld said. “But if you’re trying to claim an exemption during a public health emergency in the course of a pandemic, I think that specifics might be warranted.”