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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 1 of 40
`
`George Wentz, Jr. (Pro hac vice application forthcoming)
`Davillier Law Group, LLC
`414 Church St., Suite 308
`Sandpoint, ID 83864
`208-920-6140
`Email: gwentz@davillierlawgroup.com
`
`John W. Howard (SBN 802000)
`Michelle D. Volk (SBN 217151)
`Andrew G. Nagurney (SBN 301894)
`JW Howard/Attorneys, Ltd.
`701 B Street, Suite 1725
`San Diego, California 92101
`Tel: 619-234-2842 Fax: 619-234-1716
`Email: Johnh@jwhowardattorneys.com
`Attorneys for Plaintiffs
`
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`Case No.
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`COMPLAINT
`
`(Jury Trial Demanded)
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
`
`UNITED KP FREEDOM ALLIANCE, an
`unincorporated association; LE-LAN JORGENSEN,
`an individual; LAURA YVANOVICH, an
`individual; ROBIN DRUMMOND, an individual,
`TRACEY FORD, an individual; NATALIE OGLE,
`an individual; and NATHAN LEAVITT, an
`individual;
`
`
`Plaintiffs,
`
`v.
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`
`
`KAISER PERMANENTE (Kaiser Foundation
`Hospitals, Kaiser Foundation Health Plan, Inc., the
`Permanente Medical Group, Inc.) and DOES I-X;
`
`
` Defendants.
`
`INTRODUCTION
`On August 2, 2021, Kaiser Permanente announced that it would mandate that all
`1.
`of its over 200,000 employees nationwide be vaccinated for the SARS-CoV-2 virus (“COVID”).
`Plaintiffs are Kaiser Permanente doctors, nurses, and support staff. This is their
`2.
`challenge to that mandate.
`Plaintiffs assert that a mandatory vaccine cannot be supported when:
`3.
`a. Over 99.8% of all those who are infected and ill with COVID survive.
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 2 of 40
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`b. Those who survive obtain robust and durable natural immunity.
`c. The natural immunity so obtained is superior to COVID vaccine-induced
`immunity.
`d. The COVID vaccines are ineffective against the Delta strain of COVID, which the
`Center for Disease Control (“CDC”) states is the dominant (>99%) strain
`throughout the United States.
`e. The CDC Director acknowledged that the COVID vaccines do not prevent infection
`or transmission of COVID: “[W]hat the vaccines can’t do anymore is prevent
`transmission.”1
`f. The CDC acknowledged that the vaccinated and unvaccinated are equally likely to
`spread the virus.2
`g. The vaccines only reduce symptoms of those who are infected by COVID, but not
`transmission of the virus. They are, therefore, treatments, and not vaccines as that
`term has always been defined in the law.
`h. The CDC changed its definition of “vaccine” in August 2021. The CDC formerly
`described vaccination as “the act of introducing a vaccine into the body to produce
`immunity to a specific disease.” The definition has since been changed and now
`reads: “the act of introducing a vaccine into the body to produce protection to a
`specific disease.”
`i. This is a critical factual and legal distinction. Legal authority to mandate medical
`treatment only derives under public health regulations. As the CDC holds that Delta
`is the only strain; that the shots do not stop the transmission of Delta; and that
`vaccination is mere “protection” against a disease and not “immunity” against the
`disease; claiming this is a public health mandate is fallacious.
`
`
`1 As the Wuhan vaccine cannot stop transmission of Delta, several studies have proven that the vaccinated are
`passing the Delta strain amongst each other. For example, as reported by the NEJM, University of San Diego
`healthcare workers. The New England Journal of Medicine, Resurgence of SARS-CoV-2 Infection in a Highly
`Vaccinated Health System Workforce (September 30, 2021).
`https://www.nejm.org/doi/full/10.1056/NEJMc2112981.
`2 https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm?s_cid=mm7031e2_w
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 3 of 40
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`j. The COVID vaccines cause a significantly higher incidence of injuries, adverse
`reactions, and deaths than any prior vaccines that have been allowed to remain on
`the market, and, therefore, pose a significant health risk to recipients, who are, by
`definition, healthy when they receive the COVID vaccines.
`k. Since, according to the CDC, the COVID vaccines do not prevent the infection or
`transmission of COVID, while at the same time, also according to the CDC, they
`result in a significant number of adverse events and deaths, there is no legal basis
`for mandating them, and Kaiser’s mandate must therefore be struck down.
`
`PARTIES
`Plaintiff Le-Lan Jorgensen is an employee of Kaiser Permanente who resides in
`4.
`Contra Costa County, California. She is a nurse anesthetist and has been an employee for eighteen
`years. She applied for an exemption to Kaiser’s vaccine mandate due to her sincerely held religious
`beliefs, which was provisionally granted, and she is now compelled to be tested for COVID-19
`weekly. She is not a member of a union.
`
`5.
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`Plaintiff Laura Yvanovich is an employee of Kaiser Permanente who resides in
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`Alameda County, California. She has worked for Kaiser Permanente for thirty-three years. She
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`holds sincere religious beliefs that her body is a temple of God, and that submitting to
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`vaccination or to testing violates her obligation to keep her body holy. She applied for an
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`exemption to Kaiser’s mandate to get vaccinated or tested; her exemption request was granted
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`with regard to the vaccination but denied with regard to testing. She was terminated for failing to
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`provide proof of vaccination or to submit to biweekly testing for COVID-19. She has not, to her
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`knowledge, been infected with SARS-CoV-2. She is not a member of a union.
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`6.
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`Plaintiff Robin Drummond is an employee of Kaiser Permanente who resides in
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`Ventura County, California. She has been an employee for approximately twenty-two years and
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`has worked 100% remotely for approximately fifteen years. She holds a sincere personal belief
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`that medical decisions are to be made by her and her alone as a personal healthcare decision. She
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 4 of 40
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`also sincerely believes that her natural immunity acquired through her infection and recovery from
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`COVID-19 protect her. She applied for an exemption to Kaiser’s vaccine mandate based upon her
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`natural immunity, which was denied, and she has been placed on unpaid administrative leave
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`because she did not provide proof of vaccination. A PCR test and an antibody test has confirmed
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`that she has previously had and recovered from COVID-19. She is not a member of a union.
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`7.
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`Plaintiff Tracey Ford is an employee of Kaiser Permanente who resides in Riverside
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`County, California. She has been an employee for approximately five years. She works 100%
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`remotely. She applied for an exemption to Kaiser’s vaccine mandate based upon her sincerely held
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`religious beliefs, which was provisionally granted, and she is now compelled to provide biweekly
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`tests for SARS-CoV-2. She is not a member of a union.
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`8.
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`Plaintiff Natalie Ogle is an employee of Kaiser Permanente who resides in Spokane
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`County, Washington. She has worked for Kaiser Permanente for approximately five years. She
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`works 100% remotely. She sincerely holds the religious belief that conscience should govern her
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`actions, and anything else is an affront to human dignity as she understands the Catechism of the
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`Catholic Church, and that cooperating with the use of aborted fetal cells in the creation and testing
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`of the vaccines would be a grave moral evil. She applied for an exemption to Kaiser’s vaccine
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`mandate based upon these sincerely held religious beliefs, which was denied, and she has been
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`placed on unpaid administrative leave because she did not provide proof of vaccination. She is not
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`a member of a union.
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`9.
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`Plaintiff Nathan Leavitt is an employee of Kaiser Permanente who resides in
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`Washington County, Oregon. He has worked for Kaiser Permanente for more than fifteen years.
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`He works 100% remotely. He holds sincere religious beliefs that the use of aborted fetuses in
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`vaccines violates God’s plan for human life; that human life is a gift that must be protected; and
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`that God granted free will to human beings and any affront to free will violates that gift from God.
`
`He has applied for an exemption to Kaiser’s vaccine mandate, which was denied, and he has been
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 5 of 40
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`placed on unpaid administrative leave because he did not provide proof of vaccination. He has not,
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`to his knowledge, been infected with SARS-CoV-2. He is not a member of a union. Collectively,
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`Plaintiffs Jorgensen, Yvanovich, Drummond, Ford, Ogle, and Leavitt are referred to as the
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`“Individual Plaintiffs”. Plaintiff United KP Freedom Alliance is an unincorporated association.
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`The Individual Plaintiffs are members, as are over 4,000 Kaiser employees across all states where
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`Kaiser operates. The members of United KP Freedom Alliance (the “Association”) include
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`doctors, nurses, and support staff. They include Kaiser employees who work 100% remotely and
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`Kaiser employees that work in hospitals. They include Kaiser employees who have had COVID,
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`and those who have never had COVID. Members of the Association all refuse to take the vaccine
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`for various reasons, including religious objections to taking the vaccine, and have been
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`constructively terminated by Kaiser at this time through suspension without pay. Each of the
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`Association’s members would otherwise have standing to sue in their own right; the interests the
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`Association seeks to protect are germane to the Association's purpose; and neither the claims
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`asserted, nor the relief requested, requires the participation of individual members of the
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`Association in the lawsuit.
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`1.
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`Defendant Kaiser Permanente (sometimes “Kaiser”) is headquartered in Oakland,
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`California. It comprises Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals and its
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`subsidiaries, and the Permanente Medical Groups.3
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`JURISDICTION AND VENUE
`This Court has jurisdiction to hear this case under 28 U.S.C. § 1331, which
`2.
`confers original jurisdiction on federal district courts to hear suits arising under the laws and
`Constitution of the United States, as well as under 42 U.S.C. § 1983 in relation to Defendants’
`intent to deprive Plaintiffs of certain rights, privileges, and immunities as detailed herein.
`This Court has jurisdiction over the claims asserting violations of the laws and
`3.
`
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`3 https://about.kaiserpermanente.org/who-we-are/fast-facts
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 6 of 40
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`Constitution of the State of California through its supplemental jurisdiction under 28 U.S.C. §
`1367(a), as those claims are so closely related to the Plaintiffs’ federal question and Section 1983
`claims that they form part of the same case or controversy under Article III of the United States
`Constitution.
`This Court has the authority to award the requested declaratory relief under 28
`4.
`U.S.C. § 2201; the requested injunctive relief under 28 U.S.C. § 1343(a), and attorneys’ fees and
`costs under 42 U.S.C. § 1988.
`The Northern District of California, Oakland Division is the appropriate venue for
`5.
`this action pursuant to 28 U.S.C. § 1391(b)(1) and (2) because it is the district in which
`Defendants reside, exercise their authority in their official capacities, and/or have threatened to
`deprive Plaintiffs of the rights and liberties under the laws and Constitution of the United States,
`and, in addition thereto, to violate the laws and Constitution of the State of California, as further
`alleged herein. It is also the district in which a substantial part of the events giving rise to
`Plaintiffs’ claims have occurred and continue to occur.
`GENERAL ALLEGATIONS
`
`A. Kaiser Permanente is a State Actor
`
`6. A 2020 article in the journal Frontiers in Public Health explored the role of medical
`professionals in COVID-related policymaking. The authors explain:
`
`
`In the 2020 COVID pandemic, medical experts (virologists,
`epidemiologists, public health scholars, and statisticians alike) have
`become instrumental in suggesting policies to counteract the spread
`of coronavirus. Given the dangerousness and the extent of the
`contagion, almost no one has questioned the suggestions that these
`experts have advised policymakers to implement. Quite often the
`latter explicitly sought experts' advice and justified unpopular
`measures (e.g., restricting people's freedom of movement) by
`referring to the epistemic authority attributed to experts.
`
` .
`
` . .
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`In the context of the coronavirus pandemic, most world leaders
`began appealing to medical experts and to their epistemic authority
`to justify the implementation of unpopular measures (such as
`enforced quarantine) considered the most suitable to slow down the
`spread of COVID. This step has been motivated by, at least, two
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 7 of 40
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`elements. On the one hand, political authorities perceived that their
`ordinary actions were ineffective and had to make full use of
`biomedical expertise, often essentially delegating strategies and
`decisions to experts (e.g., implementing them and resolving any
`conflicts between different social actors; for example between trade
`unions and employers . . .). On the other hand, if leaders resort to
`the epistemic authority of experts, they are prima facie relieved of
`responsibility for the choices made, especially if they are
`unwelcome by public opinion, are ineffective, or have unforeseen
`negative side effects. In reality, this dynamic that leads experts to
`assume a central role in politics can—as we shall see below—create
`problems in itself, since the strategies proposed by experts are often
`far from neutral with respect to the values that a pluralistic society
`considers relevant.4
`Kaiser is the nation’s largest integrated, nonprofit, health care organization.
`7.
`However, it is also heavily involved in setting healthcare policy both locally and nationally,
`particularly with regard to COVID.
`Kaiser has both set state and federal policy for COVID vaccines and has carried
`8.
`that policy out. Kaiser has worked in partnership with state and federal government to develop
`and implement the policy complained of herein. Kaiser is, in fact, acting jointly with, and for
`and on behalf of, both the State of California and the Federal Government.
`
`B. Kaiser Has Been Responsible for Coordinating and/or Setting National Policy
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`In January of 2021, Kaiser’s Chief Health Officer, Bechara Choucair, was
`9.
`selected by the Biden Administration “to be the nation’s COVID vaccine coordinator.”5 As of
`October 5, 2021, he is still listed as an executive on Kaiser’s website.6
`Key governmental entities instrumental to setting COVID policy have been
`10.
`controlled by Kaiser employees since the arrival of the COVID virus in the United States, and
`still are as of the date of filing.
`For example, the Advisory Committee on Immunization Practices (“ACIP”) is
`11.
`responsible for advising the Food and Drug Administration (“FDA”) in the issuance of
`Emergency Use Authorizations for vaccines.
`
`
`4 https://www.frontiersin.org/articles/10.3389/fpubh.2020.00356/full (internal footnotes omitted from quote).
`5 https://www.politico.com/news/2020/12/29/biden-coronavirus-response-coordinators-451996
`6 https://www.kpihp.org/bio/bechara-choucair/
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 8 of 40
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`“ACIP statements are official federal recommendations for the use of vaccines
`12.
`and immune globulins in the U.S., and are published by the CDC.”7
`In December of 2020, ACIP recommended to the FDA that it approve the three
`13.
`vaccines that ultimately received Emergency Use Authorization from the FDA; J&J, Pfizer, and
`Moderna.8
`Upon information and belief, the majority of the members of ACIP who issued
`14.
`the December, 2020 recommendation were Kaiser employees, including:
`a. Matt Daley, Kaiser Permanente;
`b. Elyse Kharbanda, Kaiser Permanente;
`c. Nicky Klein, Kaiser Permanente;
`d. Allison Naleway, Kaiser Permanente;
`e. Hung-Fu Tseng, Kaiser Permanente; and
`f. Katherine Yih, Kaiser Permanente.
`15. Another critical agency in the rollout and ongoing administration of the COVID vaccines
`is the Vaccine Safety Datalink (“VSD”).
`“The VSD started in 1990 and continues today in order to monitor the safety of
`16.
`vaccines and conduct studies about rare and serious adverse events following immunization.”9
`A primary role of VSD is “to provide information to committees who make
`17.
`recommendations for the nations.”10
`The VSD consists of the following nine health organizations:
`18.
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`a. Kaiser Permanente Washington
`b. Kaiser Permanente Northwest, Oregon
`c. Kaiser Permanente Northern California
`d. Kaiser Permanente Southern California
`e. Kaiser Permanente Colorado
`f. Marshfield Clinic Research Institute
`g. Health Partners
`h. Harvard Pilgrim, Massachusetts
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`7 https://www.bionity.com/en/encyclopedia/Advisory_Committee_on_Immunization_Practices.html
`8 https://www.cdc.gov/mmwr/volumes/69/wr/mm695152e2.htm
`9 https://www.cdc.gov/vaccinesafety/ensuringsafety/monitoring/vsd/index.html
`10 https://www.cdc.gov/vaccinesafety/ensuringsafety/monitoring/vsd/index.html
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 9 of 40
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`i. CDC Atlanta, Georgia
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`It is clear on its face that five of the nine organizations are Kaiser.
`19.
`Upon further research, it is also clear, however, that Kaiser, in addition, also
`20.
`controls or has substantial cooperative relationships with three of the non-Kaiser organizations:
`Marshfield Clinical Research Institute, Health Partners, and Harvard Pilgrim.
`The Interim Executive Director of Marshfield Clinic Research Institute is Dr.
`21.
`Jacobsen,11 who also directs the research programs for Kaiser Permanente Southern California
`and the Department of Research & Evaluation. According to Kaiser, “Dr. Jacobsen serves as site
`principal investigator for the Vaccine Safety Datalink (VSD), funded by the Centers for Disease
`Control and Prevention.”12
`Health Partners and Harvard Pilgrim are both partnered with Kaiser in a program
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`called Sentinel, which is a national data network set up in 2009 to monitor the performance of
`FDA-regulated medical products.13
`The VSD has been, and still is, heavily involved in setting national policy with
`23.
`regard to COVID and is controlled by Kaiser.
`Upon information and belief, Dr. Lisa Jackson, a former member of the FDA
`24.
`Vaccines and Related Biological Products who is currently a senior investigator at Kaiser
`Permanente Washington Health Research Institute, and is also a physician at Kaiser Permanente
`Medical Group, was the final link in the development of the COVID vaccines.
`Thus, Kaiser played a key role in Operation Warp Speed, and the rollout of the
`25.
`COVID vaccines.
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`11 https://marshfieldresearch.org/research-institute-leadership
`12 https://www.kp-scalresearch.org/dr-steven-jacobsen-of-kaiser-permanente-elected-president-elect-of-the-
`american-college-of-epidemiology/
`13 Sentinelinitiative.com, Who Is Involved, https://www.sentinelinitiative.org/about/who-involved.
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 10 of 40
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`C. Kaiser Has Been Responsible for Coordinating and/or Setting California Policy
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`In January of 2021, California Governor Gavin Newsom chose Blue Cross Blue
`26.
`Shield and Kaiser to lead the state’s vaccination push14 due to Kaiser’s “expertise” in the
`field.15
`On January 23, 2021, Kaiser and the State of California signed a memorandum of
`27.
`understanding (“MOU”) which required Blue Cross Blue Shield to “cooperate and coordinate
`with Kaiser[.]”16
`The MOU further provided as follows: “In furtherance of Kaiser’s mission and
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`commitment to its members and others residing in the communities it serves, Kaiser enters into
`this MOU with the Agency, pursuant to which Kaiser will work collaboratively with the Agency
`and with Blue Shield, in its capacity as TPA, to vaccinate individuals across the State (the
`‘Vaccination Efforts’).”
`In the MOU, both parties recognized Kaiser’s market dominance: “Kaiser, in
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`collaboration with The Permanente Medical Group, Inc. and the Southern California Permanente
`Medical Group, (together, ‘Kaiser Permanente’), provides health care coverage and care to one
`in four Californians.”
`As part of entering into the MOU, Kaiser required the State of California to
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`“recognize … that a successful Vaccination Effort will include vaccination of all eligible
`individuals across the state.”
`The MOU also recognized that the Vaccination Efforts and the MOU were being
`31.
`undertaken to advance Kaiser and the State of California’s “shared goal” to vaccinate the
`residents of California.
`On March 23, 2021, Kaiser issued a “Vaccine Confidence Toolkit” for healthcare
`32.
`systems. This toolkit outlined a “[t]actic” of “[s]eek[ing] regulatory relief that will allow
`providers to have more flexibility in achieving shared [vaccination] objectives[.]” It suggested
`
`14 https://www.modernhealthcare.com/insurance/confusion-over-newsoms-choice-blue-shield-kaiser-lead-
`vaccination-push
`15 https://files.covid19.ca.gov/pdf/Kaiser-foundation-GovOps-MOU.pdf
`16 https://files.covid19.ca.gov/pdf/Kaiser-foundation-GovOps-MOU.pdf
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 11 of 40
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`that health systems: “Monitor, coordinate support, and be engaged at all levels[,]” state and
`federal.17
`On April 7, 2021, the Kaiser Family Foundation issued a legal brief on the
`33.
`permissibility of vaccine mandates. In the section entitled “Can private employers mandate
`vaccines” they wrote: “States may prohibit vaccine mandates as a condition of employment and
`instead require that employees have the ability to opt out. Employers also may be subject to
`collective bargaining agreements that require them to negotiate with employee unions before
`imposing a vaccine mandate as a condition of employment. Employer vaccine mandates are
`subject to exemptions based on disability or religious objection[.]”18
`D. Kaiser Mandates Vaccines for All Employees, to Lead the Way for National
`Policy
`
`On August 2, 2021, Kaiser issued a press release announcing it was mandating
`34.
`that all employees and physicians take the COVID vaccine. The “target date” by which all
`employees and physicians were to be vaccinated was September 30, 2021.19
`Documents sent to employees by Kaiser indicate that employees who have not
`35.
`been vaccinated by September 30, 2021, or otherwise excused from the requirement, will be
`place on leave without pay, and will be terminated by no later than December 30, 2021.
`Kaiser’s CEO is quoted in the press release as saying: “We encourage all health
`36.
`systems and business and industry leaders across the country to play a role in ending the
`pandemic by doing the same.”20 The press release noted: “Kaiser Permanente is committed to
`helping shape the future of health care.”21
`
`
`17 https://about.kaiserpermanente.org/content/dam/kp/mykp/documents/instructions/covid19-vaccine-confidence-
`toolkit.pdf p. 32 (emphasis supplied).
`18 https://www.kff.org/coronavirus-COVID/issue-brief/key-questions-about-COVID-vaccine-mandates/
`19 https://about.kaiserpermanente.org/our-story/news/announcements/protecting-health-and-safety-through-
`vaccination
`20 https://about.kaiserpermanente.org/our-story/news/announcements/protecting-health-and-safety-through-
`vaccination
`21 https://about.kaiserpermanente.org/our-story/news/announcements/protecting-health-and-safety-through-
`vaccination
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 12 of 40
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`On August 30, 2021, Fox 26 News reported: “On December 1, [Kaiser]
`37.
`employees who are not fully vaccinated or who do not have an approved exemption will no
`longer be eligible to continue employment and will be terminated.”22
`On August 2, 2021, Michelle J. Gaskill-Hames, Northern California Senior Vice
`38.
`President, Hospital and Health Plan Operations, stated: “[W]e believe we've got to lead this
`across the country.”23
`In connection with mandated vaccination and testing, Kaiser entered into a
`39.
`contract with Fulgent Genetics, Inc. (“Fulgent”) for which Kaiser collected genetic samples
`through testing and allowed the use the genetic information collected through this process to be
`shared not just with Fulgent but wrongfully shared by Fulgent at will pursuant to its contract
`with Kaiser through the use of blockchain technology that cross-references same with intimate
`personal and financial information and without reasonable control to protect the privacy of
`Plaintiffs and all of those who are similarly situated.
`As a result of Kaiser’s absolute and mandated vaccination orders, Kaiser has
`40.
`wrongfully and in violation of law and the Constitutions of the United States and California
`threatened the Plaintiffs and others similarly situated with loss of their jobs, benefits, retirement
`benefits and careers. Those threats, and the knowledge that Kaiser has released the most intimate
`details of Plaintiffs’ physical health and genetics, have caused the Plaintiffs to suffer
`sleeplessness, fatigue, fear, apprehension, anxiety, and nervousness, to their damage in an
`amount that has not, as yet, been fully ascertained. Plaintiffs will seek leave of court to allege the
`full extent of said damage when same has been fully ascertained.
`In addition, Kaiser has threatened the Plaintiffs with termination of their
`41.
`employment without due process or, for that matter, any process, in violation of the contract
`between them and memorialized in Kaiser’s statements of employment policy outside of the
`collective bargaining agreement to which others of Kaiser’s employees are subject.
`
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`22 https://kmph.com/news/local/local-nurse-speaks-out-about-vaccine-mandate
`23 https://abc7news.com/kaiser-permanente-vaccine-requirements/10926410/
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 13 of 40
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`On August 4, 2021, the Coalition of Kaiser Permanente Unions (“Coalition”) sent
`42.
`Kaiser a “Demand to Bargain” letter over the vaccine mandate. The Coalition said:
`
`
`We were notified of the planned vaccination mandate on the
`afternoon of Friday, July 30th and the mandate was issued the
`following Monday, leaving no opportunity for Coalition leaders and
`members to provide any input into the process. Abandoning the
`partnership process and sidestepping CKPU’s involvement in the
`crafting of the vaccine mandate does not further the public health
`goals and safety issues that we are all very concerned about.
`
` .
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` . .
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`
`We strongly believe that we can most effectively address these
`issues, and those yet unseen, by working together in partnership and
`with the inclusion of frontline workers’ experience and expertise,
`rather than Kaiser acting unilaterally and without our members’
`input.24
`
`
`E. Kaiser and the State of California Issued Vaccine Mandates Virtually
`Simultaneously to Prevent Healthcare Workers From Leaving to Take Jobs at
`Hospitals Without Mandates.
`
`On August 5, 2021, the state of California announced it would impose a vaccine
`43.
`mandate on healthcare workers.25 Healthcare facilities around the country were already dealing
`with critical staffing shortages.26 As reported by ABC7 News: “An unfortunate response from
`this mandate has led to many hospitals and healthcare organizations losing their healthcare
`workers because they say they would rather resign than be forced to get the Covid vaccine.”
`The New York Times reported that “[California] health care work forces and their
`44.
`unions include a striking number of vaccine resisters.”
`The New York Times also reported on Kaiser employee Gabriel Montoya’s effort
`45.
`to get the emergency room staff at Kaiser Permanente Downey California Medical Center
`vaccinated as follows: “[H]e and his fellow union leaders have had trouble getting even half of
`the 300 rank-and-file members in the hospital’s emergency room vaccinated . . . ‘I hear the
`
`24 https://www.unioncoalition.org/wp-content/uploads/2021/08/KP-Vaccine-Mandate-CKPU-Demand-to-Bargain-
`8.4.21-FINAL.pdf
`25 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID/Order-of-the-State-Public-Health-Officer-Health-
`Care-Worker-Vaccine-Requirement.aspx, https://krcrtv.com/newsletter-daily/hospitals-concerned-about-losing-
`employees-after-vaccine-mandate-announcement
`26 https://www.marketplace.org/2021/08/17/hospitals-are-short-staffed-and-running-out-of-beds-again/
`
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`Case 3:21-cv-07894-AGT Document 1 Filed 10/07/21 Page 14 of 40
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`water-cooler conversations. What are they going to do if we refuse? Get rid of us all when
`they’re having a spike in cases?’”27
`
`
`F. The Federal Government Ordered National Mandates after Meeting With the
`CEO of Kaiser
`
`On August 11, 2021, President Biden met with Kaiser’s CEO, “expressed his
`46.
`optimism that additional employers would follow suit” and “noted that the federal government
`will continue to support employers as they require COVID vaccinations.”28
`On August 23, 2021, Bechara Choucair called on private employers to mandate
`47.
`vaccines, saying: “We truly believe that employers, whether it’s state government, local
`government, private businesses, universities, colleges, community colleges, we all have a role to
`play when it comes to vaccinations. We are leading by example from the federal government.”29
`The next day he stated: “We have to look at all the tools and try to get as many people
`vaccinated as possible[.]”30
`On August 31, 2021, Kaiser Health Network put out an article entitled “Lack of a
`48.
`Vaccine Mandate Becomes Competitive Advantage in Hospital Staffing Wars”31 The article
`noted that health care workers, already in short supply, were fleeing states and employers with
`vaccine mandates and seeking job opportunities in environments that did not have vaccine
`mandates.
`On September 9, 2021, President Biden announced that the Department of Labor
`49.
`was developing an emergency order requiring every hospital, healthcare facility, and large
`employer in the country to mandate the COVID vaccine for its employees. He also issued an
`executive order requiring all federal contractors mandate vaccines for their employees.32
`
`27 https://www.nytimes.com/2021/07/27/us/california-vaccine-mandate.html
`28 https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/11/readout-of-president-bidens-meeting-
`with-business-unive