NorthShore Nurses Who Refuse Vaccine Can Be Fired, Judge Rules

EVANSTON, IL — A federal judge ruled that NorthShore University HealthSystem can enforce its COVID-19 vaccine mandate while a legal challenge from a group of its employees continues in court.

U.S. District Judge John Kness on Tuesday allowed his temporary restraining order blocking the firing of 14 hospital workers to expire and denied their motion to make the case a class action suit.

But he granted a request from the employees of the Evanston-based hospital conglomerate, identified as Jane Does 1-14 in a complaint filed in October, to continue to proceed anonymously.

The hospital workers have declared they object to the vaccine for religious reasons, citing the use of fetal tissues in medical research.

The group is represented by Florida-based Liberty Counsel and includes 11 nurses, a patient access representative, a pharmacy technician and a senior application analyst.

In his opinion denying the workers' request for an order ensuring NorthShore could not fire the nurses and other staffers while the cases remained pending, Kness said the only question at issue is whether the case met the legal standard for a preliminary injunction.

"This case involves a subject—mandatory vaccinations—that is at the forefront of a national debate so vituperative at times that it has led Plaintiffs to seek to conceal their own names. This debate becomes even more fraught when, as here, core interests of public health, religious convictions, and employers’ rights collide," Kness said.

"In resolving Plaintiffs’ request for a preliminary injunction, however, the Court need not opine on the value of COVID-19 vaccines, the theological bases of Plaintiffs’ views, or the soundness of NorthShore’s management practices," he added. "Those are matters to be addressed elsewhere."

In order to get a preliminary injunction, a plaintiff must show that they have a likelihood of success and would suffer irreparable harm that cannot be otherwise remedied. If so, federal judges then must balance the harms to both sides.

Kness said the employees indeed showed a likelihood of success in the case, but they failed to demonstrate that money damages would be insufficient compensation if they eventually win the case.

The availability of the "full panoply of legal remedies" if the Jane Does ultimately succeed on the merits of the case, "conclusively undermines" the nurses' claim of irreparable harm, the judge ruled.

"Put another way, if Plaintiffs succeed at trial, their damages can be fully compensated through the traditional legal remedy of a damages award," Kness said. "Because that remedy is available, the Court cannot lawfully enter a preliminary injunction."

A NorthShore spokesperson provided a statement in response to the judge's ruling but did not respond to questions about whether the six-hospital system planned to begin terminating unvaccinated employees next month.

“We are pleased with the court’s decision and remain committed to doing everything in our power to keep our team members, patients and communities healthy and safe," it said. "We are proud that the NorthShore team members serving our patients are vaccinated and are grateful to all our team members who continue to show compassion and care.”

Mat Staver, founder and chairman of Liberty Counsel, issued a statement pledging to continue pursuing the case.

“Northshore University HealthSystem is unlawfully denying religious exemptions from the COVID shot mandate," Staver said. "Liberty Counsel will continue to litigate its class action against NorthShore in order to hold it accountable for its mistreatment of its healthcare heroes to the fullest extent of the law. We are confident that justice will prevail.”

Related:
NorthShore Vaccine Mandate Challenge Goes Before Federal Judge
Judge Blocks Firing Of NorthShore Nurses Who Decline Vaccination
NorthShore Staff Sue Over Religious Exemptions To Vaccine Mandate

In his 27-page ruling, the judge recounted the evolution of NorthShore's mandatory vaccination policy, first announced in August, which does not allow for regular COVID-19 testing as an alternative to vaccination.

About 700 employees requested exemptions, with more than 500 of them based on religious objections. Initially, virtually all requests were denied and about 400 employees appealed, according to court filings.

NorthShore then "changed tack," the judge noted, granting all religious exemptions but declaring that it would be an "undue hardship" to allow them to continue working on-site at its facilities. At the same time, some employees who were granted medical exemptions were permitted to continue working in the hospital as long as they underwent weekly COVID-19 testing.

Then, after Kness issued a temporary restraining order, the hospital group changed its policy to place everyone seeking exemptions on unpaid leave.

At this stage, the judge said he was unable to definitively say whether NorthShore will fail in showing that accommodations requested by its employees present an undue hardship, nor could he say that the employees have no reasonable chance of success on the merits.

"At this preliminary stage, it is by no means settled that NorthShore has done all it can to reasonably accommodate [Jane Does 1-14]. This finding flows in part from NorthShore’s own conduct during this affair: initially, NorthShore told its employees that it could and would accommodate those with religious exemptions," Kness said.

In court filings, the employees said they want to comply with coronavirus mitigation measures such as masking, regular testing and personal protective equipment. Kness pointed out that NorthShore had been prepared to accommodate employees with religious exemptions by allowing them to undergo regular COVID-19 testing indefinitely as recently as late September.

"NorthShore has presented little justification for its abrupt policy change. Patients, visitors, and even employees of other hospital groups that provide medical or religious accommodations to their employees will still be permitted to enter NorthShore facilities, just as they were before the policy change," he added. "Indeed, under the new policy, a Plaintiff who is fired for being unvaccinated would nonetheless be permitted to visit a NorthShore patient even if that Plaintiff remained unvaccinated. And although NorthShore purports to rely on a new workplace rule from OSHA as a justification for its new policy, that rule allows the option of masking and testing."

While the judge rejected the employees' request for preliminary class-wide treatment, he accepted their attorney's arguments that they faced a risk of "ostracism, humiliation and retaliation" if they were not permitted to proceed pseudonymously.

Kness said it was a close issue, but the employees had offered sufficient evidence for the harms that they would allegedly suffer if their names are disclosed to overcome the presumption of openness in court proceedings.

"Striving to save lives while still respecting fundamental rights—a goal professed by both sides—is, of course, both worthy and challenging," the judge said. "But efforts to harmonize those twin aims of safety and liberty must always align with binding legal precepts."