Back in June, in a post about the first (as far as I know) case in which healthcare workers challenged a COVID-19 vaccination requirement, I wrote, “This could be the first of many cases in which employees object to their employer’s COVID-19 vaccination requirement – we’ll have to wait and see.” https://www.videntpartners.com/blog/2021/federal-judge-dismisses-lawsuit-houston-methodist-hospital-employees-who-refused-covid-19. Well, it was indeed the first of many – and a lot of them, for reasons I confess I don’t understand, involve healthcare workers. The most recent case – hot off the press just six days ago – is Does v. Mills, http://media.ca1.uscourts.gov/pdf.opinions/21-1826P-01A.pdf (No. 21-1826, 1st Cir., 10/19/21).
This is a lengthy opinion, both in its extensive recitation of the facts (11 pages) and in its analysis of the legal issues (20 pages), and I will not attempt a detailed summary here. The decision is well worth reading, particularly for its discussion of the plaintiffs’ Free Exercise claim, which could well reach the Supreme Court one of these days. For now, I leave you with introductory paragraphs of the opinion, which constitute a very brief summary of the case and set up its key issue, namely, the fact that Maine does not allow religious exemptions to its vaccination requirements:
Faced with COVID-19's virulent delta variant and vaccination rates among healthcare workers too low to prevent community transmission, Maine’s Center for Disease Control (“Maine CDC”) promulgated a regulation effective August 12, 2021, requiring all workers in licensed healthcare facilities to be vaccinated against the virus. Under state law, a healthcare worker may claim an exemption from the requirement only if a medical practitioner certifies that vaccination “may be medically inadvisable.” Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989. It has not allowed religious or philosophical exemptions to any of its vaccination requirements since an amendment to state law in May 2019 (which took effect in April 2020), and the COVID-19 mandate complies with that state law.
Several Maine healthcare workers (and a healthcare provider who runs his own practice) sued, arguing that the vaccination requirement violates their rights, including those under the Free Exercise Clause of the U.S. Constitution. They sued the Governor, the commissioner of the Maine Department of Health and Human Services (“Maine HHS”), and the director of Maine CDC, alleging violations of the Free Exercise Clause, Supremacy Clause, Equal Protection Clause, and 42 U.S.C. § 1985. They also sued several Maine hospitals, which employ seven of the nine appellants, alleging violations of the Supremacy Clause, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1985. The appellants sought a preliminary injunction to prevent enforcement of the regulation against them. The district court denied their motion. We affirm. (Citations omitted; emphasis added.)
