A federal appeals court has ordered a lower court reconsider making an exception to United Airlines’ COVID-19 vaccine mandate for certain employees.
The ruling from a divided Fifth Circuit Court of Appeals marks the latest step in an ongoing legal battle over Chicago-based United Airlines’ COVID-19 vaccine mandate.
A handful of employees who sought religious or medical exemptions filed a lawsuit against United in a Texas federal court in September, alleging the carrier’s offer of unpaid leave wasn’t a reasonable accommodation for workers who received exemptions from the mandate.
In November, Judge Mark Pittman denied their request to block United from placing them on unpaid leave while the court considers the case, finding they failed to “show they would suffer imminent, irreparable harm.”
Two of the workers, who requested religious exemptions, “out of concern that aborted fetal tissue was used in making the COVID-19 vaccines,” the ruling says. The majority on the New Orleans-based court held these exempt workers would suffer irreparable harm if the mandate remained in place, because “they are actively being coerced to violate their religious convictions.”
United said in a statement it would continue to defend its vaccination policy.
“There’s no doubt our vaccine requirement has saved lives and kept our employees out of the hospital,” the company said. “And it’s clear the best way to stay safe is for everyone to get vaccinated, as nearly all United employees have chosen to do.”
The company has said unvaccinated employees can apply for jobs that don’t involve interacting with customers until the airline deems it safe for them to return to their current roles. Those who don’t take one go on unpaid leave. Roughly 2,000 employees were granted religious or medical exemptions.
In an unsigned 22-page ruling from U.S. Judges Jennifer Walker Elrod and Andrew S. Oldham, the court reversed the ruling and remanded the case to the trial judge in the Northern District of Texas for re-consideration of the legality of the company’s vaccine mandate as it pertains to those with religious exemptions. The majority said the trial court must properly analyze the irreparable harm of making an employee choose between “the job or jab.”
The third judge on the panel, Jerry E. Smith, penned a 57-page signed dissent vehemently calling into question the wisdom of his colleagues’ conclusion, however narrow, that the lower court’s reasoning about the mandate was faulty.
Smith said his colleagues’ findings were “head scratching.” And then Smith offered a searing indictment, highlighted in a thread by attorney and prolific appellate law tweeter Raffi Melkonian.
The dissenting judge wrote, “If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning,” then “I would hide my head in a bag.” He went on to say, “Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?”
However, the majority on the 5th U.S. Circuit panel ruled in favor of requiring the trial judge to look again at allowing these workers to continue as normal in their jobs without getting the vaccine.
Mark Paoletta, a partner at Schaerr-Jaffe representing the employees, said in a statement they were pleased with the court’s decision, and he would continue to fight for employees with medical or religious exemptions.
“No employee should be required to forsake her beliefs or her health in order to continue working,” he said.
A group of airline employees challenging the vaccine policies also praised the ruling.