Wednesday, November 10, 2021

Coronavirus Update 11-10-2021: Federal judge grants injunction victory to United on its vaccine mandates, but signals that this war is far from over

A U.S. federal district court judge ruled that an employer can impose on its employees a Covid-19 vaccine mandate that provides unpaid leave as the only reasonable accommodation for medical or religious reasons.

The case, Sambrano v. United Airlines, was seen as a test case for the viability of unpaid leave as a reasonable accommodation to vaccine mandates. The order denied the plaintiffs their requested preliminary injunction. Yet, it's not that aspect of the case that's the most noteworthy. Instead, it's the critical words that the judge saved for United's apparent cavalier and callous attitude against religious accommodations as a whole to which employers should pay the most attention.

As to the injunction, the judge concluded that the plaintiffs were not entitled to it because they had not met their burden of establishing irreparable harm.
Plaintiffs … argue that "United has put its religious and disabled workers in an impossible position—take the COVID-19 vaccine, at the expense of their religious beliefs [or face indefinite] unpaid leave." …

This argument, however, conflates the potential harm arising from United's accommodation policy with the personal difficulty of deciding to decline the vaccine. United exempted Plaintiffs from the vaccine mandate; Plaintiffs were not required to violate their religious beliefs. United's employees claimed they faced an impossible choice: get the vaccine or endure unpaid leave. But they chose the latter. Their dispute thus centers on United's response to their choice. …

The Court appreciates the difficulty conscientious employees face when asserting their religious rights. These employees are statutorily protected from employers' attempts to discriminate or retaliate against these employees for living out their religious convictions. But that difficulty does not demonstrate irreparable harm.

Despite winning this motion, all is not rosy for United, as the judge had some choice words for how it handled this issue overall.

To be sure, the Court is disturbed by United's seemingly calloused approach to its employees' deeply personal concerns with injecting a foreign substance into their bodies. This is especially true since United stated on the record that 99% of its employees are vaccinated and that there is virtually no chance to transmit COVID-19 on its planes. United has thus instituted a regime in which nothing short of complete compliance with its commands will suffice. Any dissenters will be given the trifling pittance of indefinite unpaid leave. United's mandate thus reflects an apathy, if not antipathy, for many of its employees' concerns and a dearth of toleration for those expressing diversity of thought.

The Court's concerns were substantiated by evidence presented at the Preliminary Injunction Hearing. For instance, Plaintiffs showed a video where United's CEO, Scott Kirby, expressed skepticism and apparent disdain for any religiously-motivated exemption requests. At a United town-hall meeting, Mr. Kirby publicly cautioned that "very few" religious exemptions would be granted. Mr. Kirby then publicly warned "any employee [who] all the sudden decided I'm really religious" would unequivocally be "putting your job on the line. You'd better be very careful about that." Such statements paint a vivid picture of United's perspective on employees who requested religious exemptions. United's subsequent actions in "accommodating" these employees suggest that United's actions may not have been motivated by safety concerns. Instead, United's actions may be viewed as merely pretextual. Ultimately, however, it is not for the Court to decide if United's vaccine mandate is bad policy. Rather, it is the Court's role to determine if Plaintiffs carried their burden to obtain a preliminary injunction.

Lessons to learn? United may have won this battle, but if I'm its lawyer I'm very worried about winning the war. I'm not worried about the overall legality of a vaccine mandate — that issue is well decided. But I'd be very worried about United's perceived hostility against religious exemptions coupled with a reasonable accommodation process that seems to skip any required interactivity and go right to "unpaid leave" as the only choice for employees who possess a legally protected reason not to get vaccinated. You might end up at unpaid leave as the appropriate accommodation for an employee in a specific circumstance, but you have to go through the process first to reach that conclusion. By making that accommodation, and only that accommodation, available to employees, United seems to have shirked its responsibility to engage its accommodation-seeking employees on an employee-by-employee, case-by-case basis to arrive at a case-specific reasonable accommodation.

* Image by skinnylawyer from Los Angeles, California, USA, CC BY-SA 2.0, via Wikimedia Commons