For third time this month, a court upholds Boston Medical Center's right to fire a nurse who refused Covid-19 shots

A federal appeals court today upheld a lower-court judge's decision to toss a suit by a cardiac ICU nurse who claimed the way Boston Medical Center fired her in 2021 rather than let her keep working, unvaccinated, with the sort of intensely sick patients who would wind up in an ICU.

In her suit, filed in US District Court in Boston, Alexandria Melino argued this violated her First Amendment right to refuse the shots on religious grounds. Also, she argued, the shots didn't work, anyway.

But the US Court of Appeals for the First Circuit agreed with Judge Richard Stearns - who dismissed her case last year - that there was no safe or practical way for the hospital to let her keep working, so her demand would have caused an "undue hardship" and legally, the hospital's right not to suffer that outweighed Melino's right to keep working with her religious virtue intact. Also, the court said, when the hospital asked her to better define a vague exemption request that only said the shots would violate her religious beliefs, without explaining what those beliefs were, she refused.

Melino's request was that she continue working at the hospital in the same capacity in the CCU and other intensive care units without being vaccinated. BMC claimed that permitting Melino to work unvaccinated would pose an undue hardship "by increasing the risk of COVID-19 transmission amongst staff and patients." Melino does not dispute that BMC could establish undue hardship "[i]f the vaccines worked." But she argues on appeal that "[t]he onus should [have been] on BMC to prove that the products advertised as COVID-19 vaccines actually function as vaccines so as to prevent recipients from catching and spreading COVID-19." But it is uncontroverted that BMC implemented its vaccine requirement based on the CDC's recommendations, which describe vaccines as mitigating the effects and spread of COVID-19. See Rodrique v. Hearst Commc'ns, Inc.

Melino was represented by Peter Vickery of Amherst, one of a handful of Massachusetts lawyers who took on suits by people fired for refusing shots. Last week, the appeals court upheld dismissal of a case he'd brought for a BMC neonatal ICU nurse. The week before, a judge dismissed another of his cases, involving a BMC endoscopy nurse.

Vickery also argued the hospital shouldn't have fired Melino because the federal statements on which it relied to require employees to get vaccinated were "hearsay" and not proof the shots actually worked.

And, the court continued, a letter from a federal official about the vaccine that Melino's attorney said showed the vaccine didn't really work, in fact concluded that "the known and potential benefits of [the] Pfizer-BioNTech COVID- 19 Vaccine outweigh the known and potential risks of the vaccine."