You take the good/
You take the bad/
You take them both/
and there you have/
The Vax of Life. The Vax of Life.
Late in September, United Airlines employees filed a lawsuit in Texas federal court, claiming that their employer’s COVID-19 vaccination policy was discriminatory and retaliatory, violating both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). United Airlines’ policy requires that employees with religious or medical exemptions from receiving the COVID-19 vaccine be placed on unpaid leave.
In their suit, plaintiffs called for a temporary restraining order and a preliminary injunction preventing United Airlines from placing employees with vaccine exemptions on unpaid leave. While considering the preliminary injunction, U.S. District Judge Mark T. Pittman issued a temporary restraining order, but ultimately denied the plaintiffs’ preliminary injunction. Placing employees on unpaid leave, according to Judge Pittman did not rise to the level of “irreparable harm” required for a preliminary injunction. In Judge Pittman’s decision, he noted Fifth Circuit precedent that economic harm is not irreparable.
Plaintiffs submitted a motion for reconsideration, claiming that Judge Pittman had overlooked a “key harm” caused by United Airlines’ policy. Seniority at United Airlines, the plaintiffs noted, is accrued with each shift worked and decides the order in which employees are able to bid on schedules. Without the ability to work, the plaintiffs argued, they would lose their place in the seniority ranking and would be adversely affected in their choice of scheduling.
Again, Judge Pittman denied plaintiffs’ injunction, noting that they failed to prove that “a substantial threat of irreparable injury exists absent an injunction.” Even if the injunction were to be issued, Judge Pittman added, plaintiffs would shift from being on unpaid leave to paid leave, having no effect on their seniority ranking and their ability to bid on preferred shifts.
So, United Airlines’ policy doesn’t rise to the level of “irreparable harm”. So that’s it, end of story?
Not according to Judge Pittman, who noted that although he couldn’t grant a preliminary injunction, he was still “deeply disturbed” with United Airlines’ implementation of its vaccine policy, which “reflects an apathy, if not antipathy, for many of its employees’ concerns.” He suggested that plaintiffs appeal the decision if they disagreed, as he “looks forward to such guidance from the Fifth Circuit.” And so do we!
StraightforWARD Legal Advice:
Employers may enforce vaccine mandates, according to the EEOC. In most circumstances, however, they must provide reasonable accommodations to employees who are not vaccinated due to disability or religious beliefs. It remains to be seen whether United Airlines’ vaccine policy provides the “reasonable accommodations” required by Title VII and the ADA.
Nearly two years since the beginning of the COVID-19 pandemic, employers continue to find themselves in unchartered waters. With a slim playbook to call from, it’s vital that employers continue to communicate with employees and be flexible wherever possible in order to avoid costly litigation. For help with updating policies and procedures, employers should contact Jennifer Ward at 215-647-6601 or firstname.lastname@example.org.