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Ascension’s Vaccine Exemption Denial Under Scrutiny on Appeal

May 27, 2022, 1:01 PM

A federal appeals court in Chicago will hear oral arguments in an Indiana doctor’s bid to block a health-care system from requiring that workers get vaccinated against Covid-19 despite religious objections.

The US Court of Appeals for the Seventh Circuit May 31 will consider the arguments of Paul Halczenko, who’s contesting a federal district judge’s decision denying his request for a preliminary injunction against Ascension Health Inc.

The judge found that Halczenko failed to show he’d suffer irreparable harm without the court order. But Halczenko contends that Ascension’s decision to turn aside his request for a religious exemption and fire him could end up ruining his career as a pediatric intensive care physician unless the court steps in.

Even if Halczenko convinces the Seventh Circuit that potential career damage merits a preliminary injunction, he’d have to clear several other hurdles to win a court order against Ascension.

The case gives the circuit court a chance to either reinforce or lower the legal barriers that so far have prevented workers from obtaining immediate court orders against private employers that denied their requests for exceptions to Covid-19 vaccine mandates.

District courts have rejected all the requests for preliminary injunctions that they’ve ruled on in those cases as of May 17, according to a Bloomberg Law analysis.

Workers suing United Airlines Inc. over its now-defunct policy of putting those who seek religious accommodations for its shot requirement on unpaid leave did get a second chance at winning an injunction thanks to an appellate court ruling in February.

The “ongoing coercion” against the United workers to get vaccinated despite their faith-based objections qualifies as an “extraordinary and rare” situation calling for interim relief, a divided Fifth Circuit panel said.

The dissenting judge in that case called the majority’s opinion an “orgy of jurisprudential violence.”

Injunction Denied

Halczenko’s case stems from his refusal to get vaccinated against Covid-19 based on a religious objection to the use of cell lines derived from aborted fetuses in the development or testing of the vaccines.

Ascension rejected Halczenko’s request for a religious exemption in October. He filed a discrimination charge with the Equal Employment Opportunity Commission in November, about a week before he was suspended without pay from his position at Ascension St. Vincent Hospital in Indianapolis. The hospital fired Halczenko in January despite recalling other religious objectors.

Halczenko brought a proposed class action against Ascension and the hospital for religious discrimination under Title VII of the 1964 Civil Rights Act, the same day he lodged his charge with the EEOC. At least four federal appeals courts—the Second, Fifth, Ninth, and District of Columbia circuits—have allowed workers to seek preliminary court relief without first obtaining a right-to-sue letter from the EEOC or similar state agency.

US District Judge James Hanlon declined to grant a preliminary injunction, saying the alleged deterioration of Halczenko’s professional skills and reputational damage wasn’t enough to merit the order. The doctor also has adequate remedies available, such as reinstatement with a training plan, should he win on the merits, said Hanlon, a Trump appointee.

Career at Risk

Halczenko appealed the ruling to the Seventh Circuit, arguing in a brief that Hanlon wrongly relied on evidence-free speculation that training could fix the loss of his highly specialized skills. A gap in practicing medicine that lasts longer than six months will render him unable to pursue his career, he said.

And finding new employment has proved elusive, as his prospects of getting a job in his specialty area are “extremely thin” because of the requirement that workers at federally funded providers get vaccinated against Covid-19, Halczenko said.

The Seventh Circuit also should presume that harm from coercion of a worker’s religious rights is irreparable, as it is for violations of intellectual property law and certain kinds of constitutional violations, he said.

Hanlon didn’t analyze the other preliminary injunction elements—the likelihood of success on the merits, and the balance of harm and benefit if the order is granted—but Halczenko said those factors also weigh in his favor, especially in light of Ascension recalling unvaccinated workers.

“If the real reason for him being terminated had anything to do with vaccination, they wouldn’t have brought back all those employees, including in the pediatric intensive care unit where Dr. Halczenko worked,” said the doctor’s lawyer, William Bock of Kroger Gardis & Regas LLP.

Public Interest

In its brief, Ascension pointed out that the Seventh Circuit has repeatedly found that the permanent loss of employment alone doesn’t meet the bar for irreparable harm justifying a preliminary injunction. The company also cited seven other Covid-19 vaccine cases in which the courts found that loss of employment and reputational damage were fixable harms.

Although Halczenko claims that his skills will deteriorate, he hasn’t explained why he couldn’t maintain them, nor has he tried to find regular employment outside of Indiana, Ascension said.

The Seventh Circuit shouldn’t consider Halczenko’s argument for a presumption of irreparable harm because he failed to raise it in the district court, the company said.

Halczenko also can’t meet the other requirements for a preliminary injunction, according to Ascension. His Title VII claims must be dismissed because he didn’t exhaust his administrative remedies with the EEOC before suing, and it’s almost certain that that the hospital could establish that having an unvaccinated doctor treating patients would be an undue hardship, it said.

“It is in the public’s interest to help prevent the spread of COVID-19 and reduce the risk of serious illness to St. Vincent’s patients, employees, and visitors,” the company said. “This public interest in reducing the risk of transmission among patients and employees outweighs any interest asserted by Halczenko.”

Ascension’s lawyer, Patricia Anderson Pryor of Jackson Lewis PC, didn’t respond to requests for comment.

The case is Halczenko v. Ascension Health, Inc., 7th Cir., No. 22-01040, oral arguments scheduled 5/31/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com