ALLENTOWN – The University of Pennsylvania Health System’s vaccine mandate has come under fire from a group of its current and former employees, who believe that forcible disclosure of their vaccination status violates their constitutional rights.
Pennsylvania Informed Consent Advocates, Inc. of filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 7 versus the University of Pennsylvania Health System, U.S. Secretary of Labor Scott Ketcham and U.S. Secretary of Health and Human Services Xavier Becerra.
“This civil action arises out of the defendants’ flagrant disregard for the constitutional rights of American citizens in their attempt to compel vaccinations. Through the actions of defendants’ and other non-party individuals and entities, vaccines have been politicized to a point where receiving or declining a vaccine has become a political act in the eyes of the public, and being compelled into discussing one’s vaccine status is compelling that person to engage in political speech,” the suit says.
“By forcing its employees to disclose their vaccine status, University of Pennsylvania Health System is acting as a state actor when compelling political speech in violation of the First Amendment to the United States Constitution. By requiring workers across America to disclose their vaccination status, Defendants Ketcham and Becerra are forcing them to engage in un-sought-out and individually undesirable political speech in violation of the First Amendment.”
The suit states that the members of the plaintiff are “medical professionals who have chosen, for various reasons, to refuse vaccination, or have refused to disclose their COVID-19 vaccination status to others, and UPHS seeks to coerce plaintiff’s members to engage in political speech in compelling such disclosure by threat to their livelihoods, and to the well-being and fiscal security of persons dependent on plaintiff members’ jobs for their survival.”
The suit adds that the plaintiff’s members have “sincere, bona fide beliefs in opposition to the vaccine which are religious, quasi-religious or personal in nature” and are thus covered by Title VII of the Civil Rights Act of 1964.
“On or about March 25, 2021, various federal agencies, including the Departments of Labor and Health and Human Services began publicity drives to encourage and entice private corporations to act as government agents to require full vaccination as a condition to employment. These efforts have gradually ramped up in intensity culminating with President Joseph R. Biden instructing government agencies overseen by Ketcham and Becerra (OSHA and CMS) to draft regulations to require private businesses under their purview to mandate vaccination against COVID-19 thereby making these businesses, if they were not already, government agents and thus government ‘actors’ under the law,” per the suit.
“The aforementioned mandates are expected to take effect sometime in the near future, though extensive publicity, and the subsequent behavior of UPHS, has demonstrated clearly that UPHS considers the coming formal regulation already de facto the law of the land. As an organization with over 100 employees, and a health care provider, UPHS has become a government agent by anticipating and implementing the formal requirements outlined by President Biden. UPHS adopted those requirements in anticipation of formal agency-authored regulations in the future that will formalize what UPHS has already accepted is a presidential decree that it mandate vaccination for all employees.”
The suit says that after the aforementioned publicity drive, on May 19, 2021, UPHS began to require all employees (including members of the plaintiff corporation) to fully vaccinate against COVID-19 before Sept. 1, 2021 or face adverse employment action, up to and including termination.
“UPHS then began a harassment/embarrassment/shaming campaign against all unvaccinated employees which continues to this day. Pursuant to its threat to punish the unvaccinated, UPHS has formally dismissed or terminated the contracts of a number of plaintiff’s members. Such corporate disciplinary action is arbitrary, is not easily appealed, and is not narrowly tailored to fulfilling the goals of ending the COVID-19 pandemic,” the suit states.
“Because of its intensely toxic political nature, disclosing one’s COVID-19 vaccination status holds the intent, weight, and social effect of partisan political speech, and should be treated as such by this Honorable Court.”
For counts of compulsion of political speech, violation of the Free Exercise Clause, violation of privacy and bodily autonomy under the First and Fourteenth Amendments to the U.S. Constitution and violation of Pennsylvania public policy through wrongful dismissal, the plaintiff is seeking the following reliefs:
• An order enjoining UPHS from continuing to require proof of COVID vaccination as a condition for employment;
• An order enjoining Becerra and Ketcham from promulgating and enforcing the planned regulations-at-issue as long as they are in violation of the First and Fourteenth Amendments to the United States Constitution;
• An order enjoining Becerra and Ketcham form promulgating and enforcing any vaccine regulation that would violate the First and Fourteenth Amendments to the United States Constitution;
• An award to members of plaintiff in the form of compensatory damages for their losses caused by UPHS’s activities and employment back, if plaintiff members so desire;
• An award to plaintiff in the form of costs and counsel fees, and any additional and further relief the Court deems appropriate.
The plaintiff is represented by Bruce L. Castor Jr. of van der Veen O’Neill Hartshorn & Levin, in Philadelphia.
The defendants have not yet secured legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-04415
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com