Updated Feb. 14
A group of Steamship Authority employees filed a lawsuit in Barnstable Superior Court Friday seeking an emergency order to prohibit employees unvaccinated from COVID-19 from being fired.
Speaking to The Times moments after filing the lawsuit, attorney Patrick Daubert, who is representing 11 SSA employees, dubbed the Steamship Employees for Medical Freedom, said he and his clients allege the Steamship solicited religious exemption requests from employees, gave them 48 hours to complete and submit the forms, and then used the process to out the unvaccinated employees for termination.
A short time after the suit was filed, a Superior Court judge endorsed a temporary restraining order blocking the SSA from terminating the employees on the Wednesday deadline. A hearing for the case has been scheduled for Tuesday, Feb. 15, at 2 pm.
Nine of Daubert’s 11 clients submitted the exemption requests. Masscourts.org lists the plaintiffs as Captain Albert Brox, Kim Fernandes, James Bondarek, Andrea Sheedy, Paul Menton, Christopher Ovaska, Mark Anderson, Timothy Richardson, Steven Ennis, Sonia Simoneau, and Jeffrey D’Amario. The group is seeking $31,500 in lost wages and $150,000 in anticipated lost wages.
After 19 days of review, the employees were allegedly required to submit to weekly testing at their own expense and provide proof to human resources at the beginning of each week.
“On Jan. 24, [Janice] Kennefick, the director of HR, issued form letters to everyone saying due to the direct threat, your unvaccinated status poses to your fellow employees, vendors, and customers, we are unable to approve your request for religious exemption,” Daubert said.
He added that the SSA did not engage in good faith efforts to determine if accommodations existed for the unvaccinated employees. Daubert said the process implicates the employees First Amendment rights.
“Our goal is to vindicate my clients statutory and constitutional rights. They all have their right to the free exercise of their religion,” Daubert told The Times.
The COVID-19 vaccine mandate was announced in early January and within a week the ferry service said it had compliance from 93 percent of the 511 full and part-time employees who are required to get the vaccine. The SSA’s workforce blossoms to more than 700 employees during the busy summer season.
On Friday, SSA spokesman Sean Driscoll issued a prepared statement: “The Steamship Authority has not been served with any lawsuit, so it cannot comment on it. However, employers have not only the right but the responsibility to set safety standards for their workplace, which is what the Authority has done with its vaccination verification policy. Similar legal attempts to stop vaccination policies in the commonwealth have failed, and the Authority’s management believes its policy stands on sound legal ground. The Authority has worked diligently with its employees’ union representatives on the implementation of this policy, and nearly 95% of the employees currently on the payroll have provided the necessary documentation. We thank those employees for their commitment to protecting the health and safety of their coworkers and the traveling public.”
Employees were required to get their first dose of the vaccine by Jan. 6. The deadline for full vaccination is coming up on Wednesday, Feb. 16. The mandate came with a $500 incentive for SSA employees to get the shots paid out of the ferry line’s general fund. Even employees who had already gotten the vaccine were eligible for the payout with part-time employees getting a prorated amount.
Driscoll did not respond to a question about how much the SSA had paid out to employees.
At a board meeting Jan. 4 when The Times broke the story, SSA general manager Robert Davis acknowledged that the incentives were a nod to the federal mandate for companies with greater than 100 employees to require the vaccine. Any federal money would be tied to complying with the mandate. “We’re also cognizant of the president’s order regarding employers with over 100 employees. And we also understand that the potential for future federal funding will be tied to having a mandate,” Davis said at the time.
Daubert said he wants his clients to be reinstated to their positions after being put on unpaid suspension on Jan. 28 and allowing the employees to wear masks and be tested weekly at the expense of the SSA.
Down the road, Daubert said his clients are seeking backpay, nominal damages, and punitive damages.
“There are multiple plaintiffs who have their shots scheduled for Tuesday of next week because they can’t afford to stay on unpaid suspension, they can’t afford to lose their job,” he said. “It’s directly in violation of their sincere religious convictions.”
One major part of the lawsuit references Gov. Charlie Baker’s executive order no. 595 “implementing a requirement for COVID-19 vaccination for the commonwealth’s executive department employees.”
Daubert argued that under section three, independent authorities are only encouraged, not required, to adopt the vaccine policy.
Updated with the names of the SSA employees filing suit.
