The newly hired oncologist and hematologist at St. Peter’s Health is part of a legal action asking U.S. Supreme Court Justice Stephen Breyer to keep her former employer from enforcing a COVID-19 vaccination policy pending their appeal to a lower court.
Dr. Elizabeth Bigger is among the eight people known as “Together Employees,” named in the emergency application writ of injunction pending appeal filed Tuesday with the U.S. Supreme Court against Mass General Brigham Inc., a Massachusetts-based health care provider.
Efforts to reach Bigger on Wednesday were unsuccessful.
Together Employees, which consists of more than 200 employees, said the vaccine mandate violated their “sincerely held religious beliefs or places them in significant physical or mental danger.” They also note mandatory vaccine policies are “blatant violations” of the Americans with Disabilities Act and Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.
“Failure to do so would result in the de facto removal of an employer’s burden of showing actual undue hardship, leaving only a lip-service approach to religious and disability accommodation,” the application states.
On Nov. 4, the federal Centers for Medicare and Medicaid Services issued an interim rule requiring COVID-19 vaccinations for workers in most health care settings, including hospitals, that participate in the Medicare and Medicaid programs.
The proposed rule was effective Nov. 5. Under the regulation, all eligible workers must be fully vaccinated by Jan. 4, according to a posting on the Montana Hospital Association website.
The rule does allow for exemptions to staff with recognized medical conditions or religious beliefs, observances or practices, the Montana Hospital Association posting notes.
Mass General Brigham Inc. set a Nov. 5 deadline to take a COVID-19 vaccine, the Nov. 23 application notes. It states that the applicants have been terminated from the hospital. It also says one applicant resigned rather than be terminated and another became vaccinated.
It also notes Mass General has already accommodated hundreds of other employees claiming exemption, which refutes assertions it would cause an undue hardship to accommodate “further exemptions” or “additional unvaccinated employees” because it needs to “minimize the number of unvaccinated workers."
On Oct. 17, the Together Employees filed a request for a preliminary injunction to halt the requirement. A District Court denied the request on Oct. 20. Appeals were unsuccessful as well, the Nov. 23 application states, prompting the applicants to approach Breyer on an emergency basis.
Bigger, according to the Nov. 23 court document, sought a religious accommodation. She has refused any vaccines with a connection to aborted fetal tissue in the production and testing of the vaccines, provided scriptural basis for her belief and cited scientific sources. They said it had been incorrectly believed by a reviewer for the hospital that she had stated vaccines contained aborted fetal tissues.”
On Monday, St. Peter’s Health announced it had hired Bigger to be its new oncologist, replacing Dr. Thomas Weiner who was let go from the hospital more than a year ago and has filed a lawsuit claiming wrongful termination. That suit will be heard in Helena on Nov. 14, 2022.
Bigger has more than 15 years of experience providing oncology and hematology care and is relocating to Helena from Massachusetts, where, according to the news release, she is practicing at Mass General Cancer Center.
St. Peter's Health Medical Group President Dr. Todd Wampler said in a news release that Bigger has elite training and an impressive background, and her practices "align strongly with evidence-based medicine and the team-centered culture" they are cultivating at St. Peter’s.
St. Peter's Health officials were asked Wednesday if they were aware of the lawsuit and if Bigger was being required to be vaccinated.
They said the hospital does not share details about individual staff members' vaccination status per the Health Insurance Portability and Accountability Act.
“We take our responsibility seriously to keep our employees, patients and community safe,” the hospital said in an emailed statement. “We believe that the safe and effective COVID-19 vaccines are the best available tool to reduce the spread of COVID-19, minimize hospitalizations due to the virus and save local lives.”
The hospital said it plans to comply with the CMS vaccine mandate and require its 1,700 staff members to verify they have received at least their first dose of the COVID-19 vaccine or submit official religious or medical exemption paperwork by Dec. 6.
The hospital will also keep following basic precautions, including universal masking, which have proven highly effective at preventing COVID-19 transmission.
CNN reported the request was filed with Breyer because he oversees the circuit from where the case arises. They reported that Breyer could act on the request, ask for more briefings from the parties involved or refer the application to the full court for more consideration.
Mass General Brigham is the state's largest private employer and its vaccine requirements cover some 80,000 employees, CNN reported.
Attorney Roger K. Gannam is representing Together Employees and attorney Ryan P. McLane is representing Mass General Brigham Inc.