Requiring Covid-19 shots isn't assault and a group of Boston-area hospitals had the right to fire workers who refused, judge rules

A federal magistrate judge today dismissed most of a lawsuit by 20 nurses, technicians and other workers at Beth Israel Deaconess Medical Center and related institutions over their firings for refusing to get Covid-19 shots in 2021.

US District Court Magistrate Judge Donald Cabell dismissed three of the four counts brought against the hospitals, leaving only a count alleging the hospitals attempted to prevent the workers from engaging in "protected activity" to protest the vaccination policy.

Cabell started his ruling by dismissing a charge of "assault" by the workers - who alleged they were in fear of physical attack from needles plunged into their arms on the orders of Beth Israel, Mount Auburn Hospital, Winchester Hospital and related institutions.

Beyond asserting conclusorily that the defendants' actions constituted a threat of bodily harm, the complaint fails to identify any "objectively menacing" conduct the defendants engaged in and fails moreover to allege facts showing that the defendants acted to put the plaintiffs in fear of imminent physical harm, or that the plaintiffs were indeed in fear of such harm. Implicitly recognizing as much, the plaintiffs in their opposition identify the defendants' assaultive conduct as "trying to force Plaintiffs to be vaccinated under the penalty of losing their jobs if they did not," with the concomitant threat of physical harm being described as "sticking a syringe into Plaintiffs' arms, likened to battery, and injecting an unknown substance into their body, the safety of which is yet still unknown." ...

Even assuming the complaint were deemed to adequately plead that the plaintiffs felt pressured to be vaccinated, it still fails to allege facts showing that the plaintiffs were additionally placed in reasonable apprehension of imminent harmful or offensive contact. True, it alleges that employees were forced to choose between being vaccinated or terminated, but the threat of termination is a psychological rather than physical harm and thus does not constitute assault. See Gorassi, 733 N.E.2d at 110 ("[W]hat is essential is that the defendant intended to put the victim in fear of imminent bodily harm, not that the defendant's actions created a generalized fear or some other unspecified psychological harm in the victim."). Not surprisingly, other courts have rejected the notion that a termination based on a refusal to be vaccinated may constitute a common law assault.

The ruling also dismisses counts charging the hospitals with depriving the workers of their equal-protection rights, because those rights protect workers against action by government or "state actors." The fact that the hospitals accept federal funding alone does not make them "state actors," Cabell wrote, citing a ruling by another federal judge in Boston in rejecting a request by Mass. General employees for an immediate order to make the hospital rehire them after they refused Covid-19 shots. Also:

Second, an unsupported allegation that the defendants voluntarily extended governmental vaccine mandates to their own employees to curry favor with the Executive Branch of the Federal Government is not sufficient to make the promulgation of the Policy state action. To the extent the plaintiffs argue that the defendants created the Policy because the [federal rule] required them to do so, the [rule] was only published and became effective in November 2021, three months after the defendants announced the Policy, meaning that the defendants could not have "created the policy in question in this case because they were ordered to do so by the Federal Government."

Cabell also rejected the workers' argument that the vaccination requirement violated their rights under the Massachusetts Civil Rights Act. He agreed the employees were given a choice between getting the shots or termination, but that that does not constitute a rights violation under that law because Massachusetts is an "at will" employment state and so keeping a job is not a right under that law.

The only "threat" the plaintiffs allege is their threatened, and later actual, loss of employment, but the threatened or actual loss of employment is "not coercive in the relevant sense under the MCRA."

The employees were represented by Richard Chambers, who also represented an assorted collection of anti-vaxxers in their failed suit against Boston over its three-month requirement to show proof of vaccination for admission to many indoor venue as well as four North End restaurant owners in their failed suit over whether the mayor enacted fees for outdoor patios in the North End - an outgrowth of pandemic-related outdoor dining - because she hated white, Italian men.