Phoenix Children’s Hospital (PCH) defended its administrators after they revealed in a mass email those who’d received exemptions to their COVID-19 vaccine mandate. In a lawsuit against PCH (CV2021-016638), two employees claimed that PCH’s email violated their privacy and disclosed their medical information negligently.
In a 24-page response obtained by Arizona Daily Independent, PCH attorneys insisted that the scope and impact of the pandemic overshadowed the exposure of the aggrieved employees’ vaccination status. They also insisted that the apparently inadvertent disclosure about which employees were unvaccinated didn’t constitute revelation of medical records.
“While the email acknowledges PCH granted the recipients a medical or religious exemption to the vaccine requirement, the email does not indicate the basis for any employee’s exemption. And the email reveals no medical diagnosis, condition, or circumstance about any recipient,” read the response. “Plaintiffs claim their vaccination status is a private fact or medical information. For a group of employees working in an acute care children’s hospital in the midst of a global pandemic that has killed more than 776,000 people in the United States, the disclosure of an employee’s vaccination status to other unvaccinated co-workers is not sufficient publicity to support an invasion of privacy claim. Similarly, Plaintiffs’ vaccination status is not the type of patient medical information protected from disclosure by the negligence claim they purport to state.”
Even though the identities of the unvaccinated were then shared on social media, PCH attorneys further claimed in their response that the disclosure wasn’t widely disseminated, reasonably offensive, or private. Their response also claimed that the employees’ vaccination status was of legitimate public concern due to the pandemic.
“A claim for public disclosure of private facts requires disclosure to the larger public, not simply an internal list of employees. It also requires the disclosure to be highly offensive to a reasonable person. Plaintiffs cannot show an alleged disclosure of their vaccination status to other unvaccinated co-workers meets those standards. Plaintiffs further cannot show that the email discloses private information about either of them or that sharing their vaccination status with other employees working at a pediatric hospital during the COVID-19 pandemic is not of legitimate public concern,” read the response.
In part, PCH attorneys drew the distinction between the disclosure of patient versus employee medical information when weighing legal precedent. Their response declared that the employees’ complaints about inappropriate disclosure of medical information was invalid because they were employees, not patients. They also asserted that employee vaccination status was of legitimate interest to the workforce.
“PCH did not maintain a list of unvaccinated employees for the purpose of patient diagnosis or treatment, but rather to aid PCH’s patient and employee health and safety efforts,” read the response. “Courts have found private published facts that are connected to public health and safety to be of legitimate public concern [….] Here, the matter of legitimate public concern is public health and safety amid the COVID-19 pandemic.”
In a statement to Arizona Daily Independent the employees’ attorney, Alex Kolodin, warned that this type of defense from PCH would only set a precedent to openly distinguish between the vaccinated and unvaccinated in the workplace.
“PCH is defending their breach of duty to their employees, not by acknowledging their mistake, but by doubling down,” said Kolodin. “Yesterday, in court filings, they submitted a brief that is essentially the unauthorized sequel to ‘If I did it.’ Their claim, essentially, is that the PCH employees whose private medical information they disclosed had it coming because employee vaccination status is ‘of legitimate interest to its workforce.’ They also warned the public that, if the Biden administration mandates are upheld, they may go further still and ‘make visible distinctions between vaccinated and unvaccinated employees. This behavior, by a major hospital, is disappointing to say the least.”
Kolodin later assessed to AZ Free News that PCH made extreme claims in their response.
“It’s sensational. They’re bomb throwing – this is just judicial bomb throwing,” remarked Kolodin. “They’re just putting outrageous claims out there.”
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
On Tuesday, a federal court issued a preliminary injunction against President Joe Biden’s COVID-19 Centers for Medicare and Medicaid Services (CMS) vaccine mandate for health care workers. Arizona health care workers under CMS jurisdiction via Medicare and Medicaid programs don’t have to adhere to the vaccine mandate. Louisiana Western District Judge Terry Doughty, an appointee of previous President Donald Trump, issued the order.
Arizona Attorney General Mark Brnovich announced the injunction Tuesday afternoon.
“NATIONWIDE INJUNCTION Great news – a federal judge just granted our coalition’s request to STOP the Biden Administration’s overreaching ‘job or jab’ COVID-19 vaccine mandate for health care workers. We will continue to take action to protect Arizona’s health care heroes,” wrote Brnovich.
? NATIONWIDE INJUNCTION ?
Great news – a federal judge just granted our coalition's request to STOP the Biden Administration's overreaching “job or jab” COVID-19 vaccine mandate for health care workers.
Brnovich joined a coalition of 13 other states led by Louisiana Attorney General Jeff Landry, a Republican, in response to an emergency order issued by CMS on November 4. Under the CMS mandate, health care workers would’ve had to be fully vaccinated by January 4. That would’ve required individuals receiving vaccines requiring two doses to receive their first injection by December 6 to be fully compliant.
In a memorandum, Doughty wrote that Biden’s attempt to bypass Congress posed a grave threat to our Constitutional order. He emphasized the importance of safeguarding American liberties more so during the pandemic than at any other time.
“If the separation of powers meant anything to the Constitutional framers, it meant that the three necessary ingredients to deprive a person of liberty or property – the power to make rules, to enforce them, and to judge their violations – could never fall into the same hands,” wrote Doughty. “The executive branch is allowed to usurp the power of the legislative branch to make laws, two of the three powers conferred by our Constitution would be in the same hands. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
Although Press Secretary Jen Psaki issued a statement on Tuesday emphasizing the importance of vaccinations to combating COVID-19 and the latest variant, Omicron, she didn’t address the ruling as of press time.
Neither did President Joe Biden. Instead, Biden’s remarks for most of Tuesday concerned bills his administration worked to pass such as the infrastructure law, with the school shooting in Oxford, Michigan occupying the remainder of that day.
Reuters noted in their coverage that the White House declined to comment on these legal losses.
This is the latest in a series of legal battles over COVID-19 vaccine mandates that the president has lost. Courts also temporarily halted the federal contractor vaccine mandate, as well as a rule through the Occupational Health and Safety Administration (OSHA) requiring businesses with 100 or more employees to either be vaccinated or tested weekly.
Kentucky Eastern District Judge Gregory Van Tatenhove, a Bush appointee, also issued his order halting the Biden Administration’s requirement that new government contracts require contractor employees to be vaccinated for COVID-19 on Tuesday. Tatenhove’s rationale for imposing the injunction was similar to Doughty’s, citing “serious Constitutional concerns.” Tatenhove didn’t dispute that the COVID-19 vaccine worked, or that the federal government could mandate vaccinations within certain circumstances. Rather, Tatenhove said that the legal question at hand concerned what authorities the president and federal government had.
“Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no,” wrote Tatenhove. “[T]here is a serious concern that Defendants have stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate.”
Read Doughty’s full opinion ordering an injunction against the CMS mandate here.
If you’re an employer who’s following through with the OSHA mandate, the CMS mandate, or Fed contractor mandate, then you’re on your own.
The imprimatur of the federal government no longer exists and will not indemnify you.
These are not laws, and they are going down in flames.
The Arizona Corporation Commission (ACC) could vote as early as next month on a proposal that would ensure the reliability of electric, gas, and water service across the state by protecting thousands of utility employees from termination for not receiving a COVID-19 vaccination.
Commissioner Justin Olson and Commissioner Jim O’Connor are advocating for the ACC to adopt a policy and associated rules to prohibit the agency’s regulated utilities -also known as public service corporations (PSCs)- from compelling employees to be vaccinated to keep their jobs. Each violation of the policy could come with a hefty fine under the proposal.
“The Biden administration has unconstitutionally sought forced vaccinations and has intimidated companies into complying with this inappropriate policy,” Olson said of the proposal presented to the other three commissioners last week. “Workers should not have to choose between losing their jobs or being forced to receive a vaccine against their will.”
But Olson told AZ Free News on Tuesday he has another concern with the mandates, one that involves potential negative impacts to Arizona’s regulated utilities due to losing valuable employees through COVID-19 related resignations or terminations.
“Our utilities rely on a highly experienced and trained workforce.” Olson said. “We cannot allow Biden’s unconstitutional vaccine mandate to drive away critical employees whose skills are necessary to maintain safe and reliable power and water.”
The letter Olson and O’Connor sent to their fellow commissioners points out that the agency has the authority in the Arizona Constitution to “make and enforce rules, regulations, and orders” related to the safety and health of employees of PSCs.
“This is especially true when the federal government is intimidating companies to develop, implement and enforce such mandatory vaccine policies,” the letter states.
There are currently two federal COVID-19 vaccination mandates which could impact Arizona’s utilities. One is an executive order issued by President Joe Biden requiring federal contractors and subcontractors to impose mandatory COVID-19 vaccination policies.
According to Olson and O’Connor, the broad language of the executive order implicates the very PSCs which the ACC regulates “that have legally enforceable agreements with the federal government, including military bases in Arizona.”
The other mandate was issued by OSHA. It requires all private employers with 100 or more employees to implement a vaccination policy that can require stringent, invasive testing. The OSHA mandate is currently on hold while under review by federal courts across the country.
One of those courts, the Fifth Circuit Court of Appeals, said OSHA’s mandate “raises serious constitutional concerns” and grossly exceeds the agency’s statutory authority.
Olson and O’Connor have asked that their concerns be placed on the agenda for discussion and possible vote at the ACC’s Dec. 15 and 16 open meetings.
Maricopa County Community College District (MCCCD) may not prohibit nursing students with a religious objection to the COVID-19 vaccine from completing clinical rotations due to being unvaccinated, according to the U.S. District Court for Arizona. U.S. District Judge Steven Logan issued the ruling Friday, as he’d promised at the hearing on Monday. The two plaintiffs – nursing students Emily Thoms and Kamaleilani Moreno – were granted a preliminary injunction against MCCCD’s vaccination requirement. Thoms and Moreno will be able to complete their nursing programs one way or another, whether by accommodation or through regular clinical rotations, by their scheduled graduation date next month.
“Plaintiffs have shown a likelihood of success on the merits of both of their claims, that they are likely to suffer irreparable harm absent injunction, and that the balance of equities and the public interest weigh in their favor,” wrote Logan. “Their case is not doubtful, and the harm that they have alleged – the violation of their constitutional and fundamental right to free exercise – is an injury of the highest order under the Constitution and the law. Such an injury cannot be remedied by damages.”
While MCCCD claimed that they required universal vaccination due to their clinical partners’ requirements, Logan cited evidence given by the plaintiffs to the contrary. This evidence included MCCCD previously providing similar accommodations to other students for both religious and non-religious reasons: simulated clinicals, extra assignments, finding new clinical sites, and swapping assigned clinic sites requiring vaccination with those that didn’t.
Logan did note that Thoms and Moreno hurt their case by framing the lawsuit as a challenge to a “vaccine mandate,” because MCCCD doesn’t define its vaccine requirements as a mandate. For that reason, Logan modified their request for relief.
“The only vaccine mandates in this case belong to Defendant’s clinical partners, who are not parties before the Court. Rather, Defendant’s Policy is a set of requirements that together, when applied to Plaintiffs, are likely to substantially burden Plaintiffs’ right to freely exercise their sincere religious beliefs in violation of FERA and the First Amendment, to cause Plaintiffs irreparable harm, and to go against the public interest,” wrote Logan.
Both Christians, Thoms and Moreno objected to the COVID-19 vaccine due to its reliance on fetal cell lines during its testing, development, and production.
MCCCD Board Member Kathleen Winn criticized the district’s decision to hire a group of attorneys just to fight two nursing students. She also asserted that the nursing department head lied in court.
When this started back in August the administration could have done what this judge ordered us to do here. Instead we hired 5 attorneys to fight against these nursing students who represent thousands more in our state. The head of our nursing department lied in court, was caught and the judge made the best decision for these students allowing them their religious exemptions. If we appeal we are using taxpayers money to do so. Stand with these nursing students…I am proud of them and the moral courage to put it all on the line for the greater good!
On Monday, the U.S. District Court for Arizona held a hearing to determine whether senior nursing students Emily Thoms and Kamaleilani Moreno will be granted an injunction for Maricopa County Community College District’s (MCCCD) vaccine mandate for participation in clinical rotations, necessary for the two to complete their programs.
As AZ Free News reported, Thoms and Moreno have just one week before MCCCD’s vaccination deadline and the start of clinical rotations. Thoms and Moreno are seeking an affirmative injunction against the vaccine mandate; the district court expedited the case due to the timing of the deadline and clinical rotations.
Thoms and Moreno filed their complaint after MCCCD denied their religious exemption requests. The district claimed that offering exemptions would jeopardize their partnership agreements with certain health care providers and place an undue hardship on the district. These claims were rejected by Thoms and Morenos’ lawyer repeatedly in court Monday, citing several health care providers that didn’t require COVID-19 vaccination.
Thoms and Moreno’s religious objections concerned how aborted fetal cell lines were used in the development and testing of the COVID-19 vaccine. Those are lab-grown cells based on the cells derived from aborted fetal remains obtained in the 1970s and 1980s.
Christians believe that God creates a new life at conception, and will cite concepts such as “one flesh” in Genesis 2, God’s formation of man in the womb in Psalm 139, and the recognition of Jesus as alive shortly after he was conceived in Luke 1.
During Monday’s hearing, MCCCD had five lawyers while Thoms and Moreno had only one, Colleen Auer. U.S. District Judge Steven Paul Logan presided over the case – he was appointed by previous President Barack Obama in 2014.
From the get-go, it appeared that Logan was skeptical of MCCCD’s position. Near the beginning of the hearing, Logan asked the defense to clarify if they were forcing students to get a vaccine that wouldn’t protect them or their patients from COVID-19. The judge’s question likely relates to the developing studies on breakthrough infections among the vaccinated – some recent studies show as little as 1 in 5,000 vaccinated individuals experience breakthrough cases, while others show as high as 1 in 100.
The crux of Thoms and Moreno’s argument was that MCCCD’s mandate effectively would require them to either act against their religious beliefs or sacrifice all of their investments and, effectively, careers.
MCCCD claimed that Thoms and Moreno wouldn’t be given failing grades for not complying. Rather, they would receive an “incomplete” grade and would need to resume the unfulfilled portion of their studies later. MCCCD didn’t add that Thoms and Moreno may never be able to complete their studies without the vaccination.
Auer bucked MCCCD’s statements. She claimed that MCCCD either gave Thoms and Moreno no information or misinformation. She emphasized that these nursing programs are difficult to be accepted into, with long wait lists.
“The realities are that it took them very long times to get into these programs,” stated Auer.“ It’s not possible or guaranteed as [MCCCD] claimed that they will ever be able to finish these clinicals in the [near future.]”
MCCCD’s attorneys argued that Thoms and Moreno didn’t qualify for an immediate affirmative injunction because they wouldn’t suffer irreparable injuries. They also claimed that an incomplete grade would only be a “delay by a matter of months,” which wouldn’t have a lasting negative impact on the students. “Plaintiffs will not suffer irreparable injury. They’re not being compelled to take the vaccine, they’re not being given failed grades,” said defense. “What we’re talking about is a slight delay in completing their course work.”
MCCCD’s lawyers also claimed that Thoms and Moreno’s religious freedom arguments were unrelated to MCCCD’s refusal to grant either an exemption. They said it was a neutral policy that applied to all nursing students, made on the basis of a rational basis review via a legitimate government-based purpose. If MCCCD did accommodate Thoms and Moreno, the lawyers argued that such an exemption would cause financial and administrative burdens, as well as cause potential contractual harm.
Auer rejected the characterization of MCCCD’s vaccine mandates as a neutral policy.
“The fact is, this is not a neutral policy. It selects certain folks to get the religious advantage based on the luck of their clinical assignment,” stated Auer. “They were put to the choice: if you want to continue your program and complete it as you contracted for, […] you must sacrifice your religious beliefs or you won’t get that, period. They’re pulling services for which these people paid, for which they’re entitled, with no certainty of what the district says.”
Additionally, MCCCD indicated that there was a public health interest to require vaccinations. Auer questioned which was the greater public health interest – a few vaccinated nurses but a workforce shortage, or plenty of nurses.
“The public is going to lose out on graduating nurses right here right now at a time where they need those nurses,” said Auer. “There’s a shortage of nurses here and across the country. It doesn’t matter if they’re vaccinated or if they’re not – they need them in the COVID-19 wards.”
Judge Logan stated that he would take the briefing under advisement. The order will be issued Thursday by 5 pm.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
