Phoenix Children’s Hospital and its board of directors could be hit with a class action lawsuit for threatening to impose restrictions -even termination- on employees who do not obtain a COVID-19 vaccination, Arizona Daily Independent has learned.
Employees of Phoenix Children’s Hospital have been given until Oct. 1 to obtain one of the COVID-19 vaccines. Failure to comply can leave an employee without a job, which one employee contends violates Arizona’s contract law.
The employee has been trying for some time to get hospital executives to change course on the vaccination mandate. Now, she has put CEO Robert Meyer and each member of the board of directors on notice of their exposure to civil litigation.
“Implementation of this Mandate will not only amount to the probable end of your career, but it will also leave you personally liable to the organization for damages. The same can be said for each member of PCH’s Board involved in adopting the Mandate,” the employee wrote in an Aug. 27 notice to Meyer.
The employee’s identity has been confirmed by ADI but is not being published at this time out of her fear of harassment by those who disagree with her position.
“Like the majority of PCH’s employees, I love my job,” the employee noted in the notice to Meyer. “Nothing brings me more joy than providing exceptional medical treatment to children in need. I would like nothing more than to keep my job after October 1, 2021, but I refuse to be bullied.”
However, the employee noted she is “emotionally exhausted” by PCH’s “paternalistic attempts” to make her renounce her bodily autonomy.
“Nothing is more profound than one’s right to choose what substances or objects go into one’s body—especially when the choice has potentially permanent implications,” she wrote. “As a human being and—more specifically, as a woman—I decide what specific objects penetrate my body, and I decide what substances I ingest. It’s my body, and it’s my choice.”
As to the contract law argument, the employee told Meyer that what Phoenix Children’s vaccination mandate does is modify the implied-in-fact contractual rights of its existing employees. And the issue of changing the terms of an at-will employee’s existing employment conditions is something the Arizona Supreme Court addressed more than two decades ago (Demasse v ITT, Corp in 1999).
“Consequently, the offer to modify these employment contracts must be supported by assent to the offer and acceptance of the proposed consideration,” the employee noted. “By itself, continued employment does not constitute sufficient consideration to modify an employment contract.”
The employee’s letter to Meyer argues that under Arizona law, “consideration necessary to modify an existing contract requires a bargained for exchange to support the employees’ relinquishment of the protections they are entitled to under the existing contract.”
She went on to state that she is “not generally against vaccines” and that in certain instances, “the efficacy of a vaccine clearly outweighs the risks of contracting the disease against which that vaccine is designed to provide immunity.”
But the employee added that as an employee in Arizona only she has the right to decide whether to receive a COVID-19 vaccination, “and PCH may not abdicate this decision by unilaterally modifying my existing employment contract.”
PCH employees who do not have a medical reason for refusing the vaccination mandate may file for a religious exemption. However, that process requires an employee to answer intrusive essay-style questions about the employee’s religious activities, including when the employee began to practice the religion or faith they practice and what conflict the employee sees between their beliefs and Phoenix Children’s mandatory COVID-19 vaccine requirement.
In addition, employees seeking the religious exemption can be required to describe what other actions “demonstrate or support your sincerely held religious objection to the COVID-19 vaccine,” according to a company emailed sent to an employee.
For now, the employee’s plan is to continue her employment with PCH after Oct. 1, “pursuant to the terms of my existing employment contract” and she is refusing to answer any further questions put forth by the company related to the vaccination mandate.
“Let me be clear, I will not comply with your Mandate. If you choose to terminate me because of this, I will sue PCH, you personally, and every member of your board,” she wrote to Meyer.
Joining Meyer on Phoenix Children’s board of directors is chairman George Getz, who is president of Globe Corporation. The other directors are Robert Delgado, the CEO of Hensley Beverage Company; David Lenhardt who was formerly the CEO of PetSmart; Rich Boals, the former CEO of Blue Cross Blue Shield of Arizona; Donald Slager who served as CEO of Republic Services; Molly Ryan Carson of Ryan Companies U.S.; Michael Ebert of RED Development; and Jon Hulburd of Jet Linx.
Two doctors also sit on the board of directors, including Dorothy Rowe, MD, who is president of Phoenix Children’s Medical Staff as well as a pediatric surgeon with Phoenix Children’s Medical Group. The other is Blake Bulloch, MD, vice president of Phoenix Children’s Medical Group.
The employee also believes company officials are not the only ones who could be held liable for the mandatory vaccination policy. The attorneys who signed off on PCH’s plan should be targeted as well, she wrote to Meyer.
Anonymous Notice to Meyer