No Preliminary Injunction for Health Care Workers Seeking Religious Exemption from Vaccine Mandate

A group of hospital workers face termination for their refusal, on religious grounds, to be vaccinated against the COVID-19 disease…. The plaintiffs filed religious objections against receiving the COVID-19 vaccines. Plaintiffs claim that the vaccines were created using cells derived from aborted foetuses. NorthShore was offered an alternative by the Plaintiffs: instead of being vaccinated they would prefer that Plaintiffs undergo full-time masking, weekly COVID-19 testing and daily vaccinations. NorthShore insists that plaintiffs be vaccinated.

The Plaintiffs are now seeking a judicial injunction to stop NorthShore’s firing of them because they were unvaccinated. According to Plaintiffs, NorthShore’s policy violates … Title VII of the Civil Rights Act of 1964 ….

[A]lthough Plaintiffs have demonstrated some likelihood of success on the merits of their Title VII claim—employers are required to make reasonable accommodations of religious practices and views—Plaintiffs cannot meet the additional prerequisites for preliminary injunctive relief of showing irreparable harm. In other words, Plaintiffs can receive full compensation for their losses if they win at trial. Because that remedy is available, the Court cannot lawfully enter a preliminary injunction….

For Title VII to be prima facie, discrimination under religious law must be proven. A plaintiff must show that an employer has failed to provide reasonable accommodation. She also needs to prove that the plaintiff brought the conflicting religious practice or observance to the attention of her employer and that it was the reason for her dismissal or any other discriminatory treatment. … Title VII’s reasonable-accommodation requirement is meant “to assure the individual additional opportunity to observe religious practices, but it [does]Employer should not be obligated to provide accommodation at all cost. …

[T]The defendant must prove that an accommodation would cause undue hardship. The Supreme Court explains that an accommodation that imposes more hardship than necessary is an undue hardship. de minimisEmployer burden

The undue-hardship issue must be assessed on its merits. This is because an employer’s ability to “reasonably accommodate” a religious belief without undue hardship “is basically a matter of fact.” …

Although it seems that NorthShore attempted to be reasonable accommodating Plaintiffs, this is still a preliminary stage. This is partly due to NorthShore’s conduct in this matter: NorthShore initially told employees it would and could accommodate religious exemptions. NorthShore permitted each Plaintiff to play their part in masking and testing during much of the current public health emergency. Even taking into account the availability of vaccines to hospital workers in the early 2021s, it seems that nearly a year has passed since NorthShore considered testing and masking sufficient to protect its visitors, patients and employees.

Plaintiffs assert that they are seeking to adhere to “all reasonable requirements that function as alternatives elsewhere”, including regular testing, masking and PPE, regular monitoring, self-monitoring, reporting, and any other safety protocols. NorthShore, even as late September 2021 was open to allowing religiously-exempt employees indefinitely routine testing.

NorthShore does not have any reason to change its policy. NorthShore will continue to allow visitors and patients as well as employees of other hospital organizations that offer medical or religious accommodation to employees to access its facilities. The new policy allows a plaintiff who has been fired because they are unvaccinated to still be allowed to see a NorthShore resident even though the Plaintiff is not vaccinated. NorthShore says it will use OSHA’s new workplace rules to justify its policy. But that OSHA rule does allow for masking and testing.

If NorthShore can meet the requirements, de minimis burden test … is uncertain. The Court can’t assume the role of factfinder and declare that NorthShore won’t succeed in showing Plaintiffs that the requested accommodation causes undue hardship at this stage.

It cannot, however be said that Plaintiffs are unlikely to succeed on their merits. Especially in the light of the present record—where NorthShore changed its policy in an arguably arbitrary manner, other NorthShore employees who sought an exemption on nonreligious grounds were (at least initially) treated differently, and other hospitals comparable to NorthShore have not categorically foreclosed any accommodation short of vaccination—a factfinder could determine that the accommodations Plaintiffs seek are not undue burdens. Plaintiffs have thus established some likelihood of success on the merits….

[Yet p]reliminary injunctive relief is uncommon in the context of employment discrimination actions under Title VII …. This is because, in the ordinary case, money damages are available as compensation for the loss of income and other employment-related harms….

This opinion joins recent rulings from other courts facing similar arguments that strongly suggest Plaintiffs cannot demonstrate irreparable harm…. {[I]The emphasis on ‘t is that neither the defendant nor the plaintiff in Sambrano nor NorthShore are government actors; accordingly, the First Amendment is not implicated.} …

Because it can be fully compensated by monetary damages, “loss of employment is not irreparable.” In fact, “permanent job loss does not necessarily mean irreparable damage.” The Court can’t lawfully rule that Plaintiffs are causing irreparable harm because they complain of harms that could be compensated through money damages.

This finding is made by the Court mindful of Plaintiffs’ dilemma. It is undeniable that any recovery of damages by Plaintiffs—even an across-the-board victory—is months or perhaps even years away. In that time, the Plaintiffs will need to continue providing food, shelter and other essentials for their own families and those of their dependents. The possibility of recovering in the future does not provide enough to cover current needs. Some Plaintiffs may choose to get vaccines despite religious beliefs.

But in that sense, Plaintiffs are situated no differently than other Title VII plaintiffs who may face the same choice—who may feel compelled to tolerate invidious discrimination at work based on personal needs, and yet for whom precedent establishes that money damages are a sufficient remedy.