R.I. responds to lawsuit over lack of religious exemption in health care worker vaccine mandate

A lawsuit filed on Thursday, Sept. 23, 2021, is challenging the constitutionality of Rhode Island’s Oct. 1 COVID-19 vaccine mandate for employees at state-licensed health care facilities because it doesn’t allow for exemptions based on religious beliefs. R.I. Attorney General Peter. F. Neronha filed a rebuttal Friday, defending the mandate. / PBN FILE PHOTO/ARTISTIC IMAGES

PROVIDENCE – A lawsuit filed on Thursday on behalf of four health care workers, who brought the action under pseudonyms including “Dr. T.” and “Nurse L.,” is challenging the constitutionality of Rhode Island’s Oct. 1 COVID-19 vaccine mandate for employees at state-licensed health care facilities because it doesn’t allow for exemptions based on religious beliefs.

The lawsuit states Rhode Island “stands nearly alone in even attempting to outlaw this right” to religious freedom among health care workers, with no other state currently flatly denying any exemptions to health care vaccine mandates on the basis of religion, except for a Maine policy that is currently being challenged in court and a New York policy halted by a federal injunction. The Rhode Island vaccine policy is especially discriminatory, the lawsuit argues, since medical exemptions are allowed for, but not religious exemptions.

“Plaintiffs here, and others like them, wish to continue to serve their patients – and do so in a time of a shortage of health care workers in our state,” according to the lawsuit, filed for the plaintiffs by Providence-based attorney Joseph S. Larisa Jr. “They ask only that their federal right to a religious exemption and reasonable accommodation be considered on the same basis as a medical exemption.”

The state filed a response in federal court to the lawsuit on Friday, with R.I. Attorney General Peter. F. Neronha and Assistant Attorney General Michael W. Field pointing to a 1944 U.S. Supreme Court decision called Prince v. Massachusetts, along with two other historic cases. The ruling in the case was a 5-4 decision that upheld the Massachusetts laws restricting the abilities of children to sell religious literature, but the ruling also spoke about parental authority more broadly, citing a 1905 U.S. Supreme Court decision in favor of state’s enforcing compulsory smallpox vaccinations.

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“Courts have subsequently applied Prince’s rationale to mandatory vaccination requirements,” according to the state’s legal response. “Accordingly, there is no constitutional right to a religious exemption to a vaccination requirement.”

The defendants named in the lawsuit include Dr. Nicole Alexander-Scott, director of the R.I. Department of Health, whose department has promulgated and is enforcing the vaccine policy, and Gov. Daniel J. McKee, who announced the statewide health care vaccine mandate on Oct. 10.

The R.I. Department of Health said that because there is a pending lawsuit, it cannot comment on the matter.

The lawsuit comes as hospitals and nursing homes in Rhode Island, and throughout the nation, are facing staffing shortages. On Thursday, Rhode Island’s largest hospital company, Lifespan, announced that it shut down part of its emergency department at Rhode Island Hospital called the “C-Pod” unit, which had the capacity to serve 14-20 patients and was used variously s inpatient holding unit, a unit for moderately acute patients, and a COVID isolation unit, according to a hospital spokesperson.

However, Lifespan spokesperson said staffing problems predate the vaccine mandate, which has caused some hospital and nursing home officials to express concern over staffing, leading McKee and the R.I. Department of Health to announce recently that it is giving health care facilities 30 additional days beyond the Oct. 1 deadline to replace unvaccinated employees, in situations where the loss of unvaccinated employees would create a risk to the quality of care provided to patients there.

“Staffing has been a challenge throughout the pandemic and we were experiencing attrition such as nurses leaving for travel nurse opportunities, before any vaccine requirements,” said Lifespan spokesperson Kathleen Hart. “The recent staffing shortages from leaves of absences, daily call-outs, and resignations for travel nurse opportunities make it difficult to staff the area consistently.”

The federal lawsuit against McKee and Alexander-Scott seeks an emergency restraining order to stop anyone who sought a religious exemption to the vaccine mandate from being terminated, which Larisa said would qualify as “irreparable harm,” a legal requirement for such an injunction to be enacted.

“Indeed, at least one plaintiff (and upon information and belief, many more health care workers), have already been terminated by their health care facility, which has denied their requested religious exemption based upon the vaccine mandate,” Larisa wrote in the lawsuit. “Other plaintiffs have been advised they would be terminated by October … despite the fact that their religious beliefs compel abstention from COVID-19 vaccination. Plaintiffs will suffer loss of employment, their license to practice medicine and their professional and personal standing in their community.”

No hearing date is yet scheduled for U.S. District Judge Mary Susan McElroy to decide on the motion for a temporary injunction.

Larisa stated in the federal lawsuit that Rhode Island’s lack of a religious exemption “flies in the face of” the First Amendment and Title VII of the federal Civil Rights Act, which is meant to protect employees against discrimination based on race, color, national origin, sex, and religion, citing numerous successful freedom of religion cases adjudicated by the U.S. Supreme Court. The lawsuit also states that the mandate violates the Equal Protection Clause of the 14th Amendment.

If the vast majority of other states can accommodate religious exemptions, Rhode Island should be able to do so, too, the lawsuit states.

“Rhode Island is not an island unto itself,” Larisa wrote. “If across America religious exemptions can be accommodated consistent with patient safety, then as a matter of law and logic, the same applies here. It is not an undo burden to treat religious exemptions the same as medical exemptions.”

Marc Larocque is a PBN staff writer. Contact him at Larocque@PBN.com.

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