Nursing home must face vaccine-related wrongful firing claim, but not $2M retaliation accusations 

A former director of recreation therapy can move forward with claims that the Massachusetts nursing home where she worked for 10 years wrongly terminated her over her refusal to be vaccinated against COVID-19.

The US District Court for Massachusetts this month cleared Sharon Hines to pursue her federal wrongful termination case against Ellis Rehabilitation and Nursing Center, which she alleges fired her for not complying with state COVID vaccination guidance — despite the fact that she previously had applied for and received a medical exemption from the nursing home.

The court denied a motion by Ellis to dismiss Hines’ disability discrimination claim in a Nov. 14 ruling first reported by Bloomberg Tuesday.

In a 16-page opinion, the court said it couldn’t dismiss the case at this stage because it couldn’t determine whether providing Hines ongoing accommodations in lieu of vaccination would have violated Massachusetts public health guidance and created undue hardship for the nursing home. State guidance issued in August and September of 2021 didn’t fully exclude the provision of medical exemptions. 

But the court also offered facility leaders several reasons to be thankful: It dismissed Hines’ accusations of retaliation and found no basis for her to pursue due process claims under the US Constitution or a state law she cited in a lawsuit seeking upwards of $2 million in damages.

A statewide vaccination mandate for healthcare workers took effect in Massachusetts on Oct. 10, 2021, months ahead of a federal mandate that allowed medical exemptions 

Hines had been director of recreation therapy at Ellis, in suburban Boston, since 2011 until her termination on Oct. 7, 2021. Two months prior, Ellis had announced that it would implement a COVID-19 vaccination policy requiring all staff to be vaccinated by Oct. 10. The internal policy provided exemptions for medical and religious reasons, and Hines, who has Guillain-Barré syndrome, received a medical exemption from the facility that September, the court said.

Conditions of employment, firing

As a condition, Hines consented to being tested daily for COVID, wearing a mask and goggles while on the units and refraining from providing personal care to residents. She returned to work for a month, but on Oct. 5, she said her employer demanded she get vaccinated COVID to keep her job, citing state department of public health guidance.

The DPH Guidance said “staff who are not fully vaccinated should not work across units or floors,” and a facility should “[l]imit staff who are not fully vaccinated to onsite work at only one facility, whenever possible.” It also threatened non-compliant nursing homes with admission freezes and daily fines.

In court documents and at a recent hearing, Hines argued that her medical exemption and reasonable accommodations showed she was complying with state guidance. She alleged the decision to fire her was discriminatory because of her medical condition and retaliatory, both in response to her refusal to be vaccinated and an unrelated refusal to work weekends.

Ellis Rehab argued for a dismissal of all of those claims, saying allowing Hines to work unvaccinated would have caused the family-owned organization undue hardship. 

The family-run nursing home is part of a four-facility senior living and care portfolio owned and operated by A. Franchi Healthcare. Owner Anthony Franchi told McKnight’s Long-Term Care News Tuesday the lawsuit was “unfortunate.”

“We followed the state regulations and that’s what we’re living with,” he said. “We tried everything we could to work with [the employee].”

Unique circumstances?

The court found the allegations in Hines’ case differed from previous case law allowing early dismissal because the state vaccination guidance did “not entirely omit the category of exemption sought by Hines.”

“Given the allegations here, the Court cannot conclude that it is clear on the face of the pleadings that there is no doubt that Hines’s claim would be barred on undue hardship grounds based upon the DPH guidance,” wrote US District Judge Denise J. Casper.

But the court took the opposite tack when it came to Hines’ allegations of retaliation. Casper ruled that Hines’ shift refusals were unprotected and that she failed to demonstrate a connection between her refusal to receive the vaccine and her termination. 

Instead, the court found her arguments showed only that she was terminated for continued non-compliance. 

The court also dismissed Hines’ claims of due process violations under both the federal constitution and the Massachusetts Declaration of Right, finding that she didn’t provide “enough facts to state a [federal] claim to relief that is plausible on its face” and that she has no private right to sue under the state declaration.
Hines can continue to pursue her disability discrimination claim, including that Ellis  failed to provide a reasonable accommodation, in federal court. The case will be closely watched by providers who adopted their own vaccination policies or tried to follow guidance in states that adopted mandates prior to federal implementation.