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Justice denies request to block vaccine mandate involving new Helena oncologist

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Stephen Breyer

Supreme Court Justice Stephen Breyer gives a speech in 2011 in Florida. 

U.S. Supreme Court Justice Stephen Breyer on Monday denied a request from a group that includes a newly hired oncologist at St. Peter’s Health to block the vaccine mandate being implemented by her previous employer, pending an appeal to a lower court.

The justice denied the application for injunctive relief filed by "Together Employees" against Mass General Brigham Inc., a Massachusetts health care system, the court stated in a filing posted online. No explanation was posted on the court’s website.

Dr. Elizabeth Bigger, an oncologist and hematologist hired recently by St. Peter's Health, is among the eight representatives of Together Employees named in the emergency application writ of injunction pending appeal filed Nov. 23 with the U.S. Supreme Court.

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.

Mass General set a Nov. 5 deadline to take a COVID-19 vaccine, the Nov. 23 application notes. It states that some applicants have since been fired from the hospital. It also says one applicant resigned rather than be terminated and another became vaccinated.

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.

Bigger, according to the Nov. 23 court document, sought a religious accommodation.

A request by Together Employees for a preliminary injunction to halt the requirement was denied by a district court. Appeals were unsuccessful as well, the Nov. 23 application states, prompting the applicants to approach Breyer on an emergency basis. Breyer oversees the circuit from where the case arises. He could have acted on the request, asked for more briefings from the parties involved or referred the application to the full court for more consideration.

St. Peter‘s announced Nov. 22 that it had hired Bigger. She replaces Dr. Thomas Weiner, who the hospital fired in November 2020.

He has a lawsuit pending against the hospital for wrongful termination.

Last week, St. Peter's Health officials declined to comment on whether Bigger was being required to be vaccinated as part of her new job, citing privacy laws. However, they said safe and effective COVID-19 vaccines are the best available tool to reduce the spread of COVID-19.

Assistant editor Phil Drake can be reached at 406-231-9021.

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