AKRON, Ohio — Former workers from Akron Children’s Hospital who were fired after refusing to comply with the hospital’s vaccine mandate are now taking their battle to federal court.
The 66 workers are represented in a class-action lawsuit that argues they were denied religious accommodations and that the hospital violated their First Amendment rights.
Jan. 11 was the hospital deadline for employees to be fully vaccinated against COVID-19. Then, at the end of February, the hospital system officially terminated those employees still out of compliance.
“I believe it's very clearly unconstitutional,” said Warner Mendenhall, the attorney representing the former hospital workers.
Mendenhall said all of the plaintiffs applied for religious exemptions but were denied.
“These people have been working in the pandemic for two years. They've been exposed. All of them have natural immunity and the exemptions–by not granting the exemption, Akron Children's is hurting services to the community,” said Mendenhall.
The complaint states the hospital’s actions violate the former workers’ First Amendment rights to freely exercise their religion and is seeking an injunction plus damages including back pay and reinstatement or front pay.
“Employers are allowed to have requirements, and health care providers traditionally have required flu vaccines, TB tests, all sorts of things,” said Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University School of Law.
Hoffman believes the lawsuit won’t hold up because the U.S. Supreme Court upheld the federal vaccine mandate for health care workers earlier this year imposed by the Centers for Medicare & Medicaid Services.
Akron Children’s Hospital also released a statement in response to the lawsuit:
Akron Children’s Hospital is confident that our procedures for reviewing exemption requests from our COVID vaccination requirement are appropriate and legal. A vaccinated workforce 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.
Mendenhall thinks this is a case of "government actor doctrine" where a private business acts in the interests of the federal government.
“The federal government has reached out so far and it's both offered incentives and coercion for private employers and employers like Akron Children's Hospital to do the federal government's bidding. And when they do that, they step into the shoes of the federal government actor. And we believe that these employees have a right to sue directly under the First Amendment,” said Mendenhall.
Hoffman said that’s a difficult argument to prove and win.
“Employers have to follow mandates all the time. And that does not make them an arm of the government. Quite to the contrary, they're simply complying with what the government requires,” said Hoffman. “The government has all sorts of regulations that apply to employers, including minimum wage, including safety protocols at work, including that you have to have drinkable water and bathrooms and not discriminate—I could go on and on. And none of that makes employers an arm of the government. It makes them comply with government orders that are put in place to protect the public.”
A date has not yet been set for initial hearings in the case.
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