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Judge won’t stop Ky. health system from requiring employees to get COVID-19 vaccine

A federal judge on Friday said a Northern Kentucky hospital system can require its employees to be vaccinated for COVID-19 or face the possibility of being fired.

Forty employees of St. Elizabeth Medical Center and St. Elizabeth Physicians have filed a lawsuit against their employer in U.S. District Court in Covington, stating concerns about the safety and effectiveness of what they call an “experimental” vaccine and arguing that the requirement that they take it infringes on their rights.

They had asked a judge to issue a temporary restraining order or injunction to prevent St. Elizabeth from requiring them to either get the vaccine or submit a request for a medical or religious exemption by Oct. 1.

In his order denying the workers’ motion, Judge David Bunning wrote that it is lawful for public and private entities to require vaccines and that courts have upheld the idea that employers have a right to dictate conditions for employment.

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He pointed to a 1905 case, Jacobson v. Massachusetts, in which the Supreme Court agreed that the state of Massachusetts could “impose a vaccine mandate without exception, and with a penalty of imprisonment, during the smallpox pandemic.”

“Being substantially less restrictive than the Jacobson mandate, and being enacted by a private actor, Defendants’ policy is well within the confines of the law, and it appropriately balances the public interests with individual liberties,” Bunning wrote.

He said St. Elizabeth employees agree to abide by other conditions of employment set by the hospital, such as wearing a certain uniform, arriving and leaving at a certain time and getting a flu shot.

“If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment,” Bunning said in the order.

Attorneys for the workers and for the health system argued the case before Bunning Tuesday.

St. Elizabeth said then that it had received 232 requests for medical exemptions, according to the judge’s order. Of those, 31 had been fully granted, and 143 deferments had been granted. There were 24 requests still pending, and 34 requests had been denied.

The health system said it had received 739 requests for a religious exemption, of which 425 had been granted, 39 were denied and 275 were pending.

Bunning said he “recognizes that the COVID-19 pandemic has become unfortunately political and vitriolic, on all sides.”

He said he made the ruling Friday “irrespective of politics,” and after he “evaluated and analyzed the law and the legal arguments raised by both sides.”

The lawsuit is still pending. Alan Statman, an attorney representing the employees, told Cincinnati television station WXIX that he is “evaluating next steps.”

St. Elizabeth attorney Mark Guilfoyle told The Cincinnati Enquirer that Friday’s ruling will benefit the community by reducing the spread of the virus and helping “keep people out of the hospital.”

St. Elizabeth says on its website that it has “more than 10,000 associates and a medical staff of nearly 1,200 physicians and advanced practice providers.”

The organization has hospitals in Covington, Florence, Fort Thomas, Edgewood and Williamstown, as well as in Lawrenceburg, Ind. It has 169 physicians’ offices in Kentucky, Ohio and Indiana.

Major hospital systems throughout the state, including UK HealthCare, UofL Health, Baptist Health, CHI St. Joseph Health and a number of others have added the COVID-19 vaccine to their list of inoculations required for staff. Some facilities have begun firing employees who choose not to get the vaccine.