What is reasonable accommodation? What is undue hardship? How those terms are construed will determine the victor in a new class action lawsuit against United Airlines over its employee vaccine mandate.
United Airlines Vaccine Lawsuit – It All Comes Down To Reasonable Accommodation + Undue Hardship
United Airlines has been sued by six employees in a lawsuit which aims to become a class action lawsuit for all United employees who face unpaid leave or termination over their refusal to receive the COVID-19 jab. The complaint, filed in federal court in the Northern District of Texas, argues:
“Plaintiffs do not dispute the important goal of stopping COVID-19’s spread, but it does not override United’s obligations under federal law. And it certainly does not allow United to effectively terminate all employees who requested an accommodation.”
At the root of the case is the whether there are viable alternatives to a vaccine.
United has told employees who are offered a religious or medical exemption that they will be placed on unpaid leave starting next month. Those who are not in customer-facing roles will be able to return to work in the “near future” with testing and masks while customer-facing employees will not be allowed at work, regardless of testing status, until the pandemic “meaningfully recedes” (according to United).
Reasonable accommodation is an adjustment made in a system to accommodate or make fair the same system for an individual based on a proven need. In the context of religion, the law states employers must reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
Yet courts have also consistently held that an employer is not required to undergo undue hardship in order to accommodate religious beliefs. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Undue hardship in the context of COVID-19 vaccines is a tricky topic because we are still figuring out COVID-19 and its effects. Take a pilot, for example. Typically her interactions with passengers are limited and when they occur, take place wearing masks and in an environment in which HEPA filters and air recirculation create a much safer place than in other environments.
The Biden Administration order concerning a vaccine mandate for companies with more than 100 employees offers an alternative testing option. United is offering no such alternative.
Is that pilot (or flight attendant) a threat, especially after airlines have spent the pandemic trying to assure passengers that airplanes are very safe environments, even before the vaccine was created and approved?
United may also in trouble for the manner in which it has tried to verify whether a religious belief in sincerely-held. The controlling statute does not require proof. But United employees seeking such an exemption have been grilled on their faith tradition and in many cases, asked for a letter from their spiritual leader explaining the opposition to vaccines.
During an employee town hall meeting on the virus, United CEO Scott Kirby openly-questioned those who would seek religious exemptions, stating, those who “all of a sudden decide ‘I’m really religious’” will not be granted an exception.
My Thoughts On The United Airlines Vaccine Lawsuit
I’m sympathetic to both some employees and to United Airlines. I wish that the vaccine has not become such a political issue.
As a Christian, I fully believe that our bodies are the temple of God and should not be defiled. Nevertheless, I see no persuasive biblical argument against vaccines. Indeed, I don’t see vaccines as toxins, but precisely the opposite: as protective shields. The statistics seem very clear to me: the vaccine is highly effective, not foolproof, and those who have it and may be exposed to COVID-19 generally report far better outcomes. Of course there will be outliers and of course there will be some bad outcomes. That was expected; humans are fragile and our amazingly intricate bodies are prone to sometimes unexplainable reactions.
While on the topic of religion, isn’t it interesting how personal autonomy is implicated in different ways depending upon your worldview? Many who are rabidly pro-choice are also strongly in favor of a vaccine mandate. Meanwhile, ardent foes of abortion have co-opted the “my body, my choice” slogan to oppose obligatory vaccinations.
I see intellectual incongruity on both sides of this argument. Both come down to a subjective conception of harm: who is being harmed by your action? The “pro-life” advocate reasons that the limits of personal autonomy are reached when another life is impacted. In the case of abortion, that is in a fetus, which is viewed not as a potential life, but a human life at an early stage of development and therefore worthy of societal protection in a nation that espouses equal rights and human dignity.
But many of these same folks look only inward and fail to see that their refusal to be vaccinated has the potential of negatively impacting those around them, indeed even killing them – COVID-19 is real and particularly pernicious to certain high-risk groups.
We could make an analogous argument for the subjective self-autonomy of the pro-choice side as well.
We don’t live in caves or basements; we live in society. It therefore seems rather unavoidable, as a collective action problem, that humans can avoid interaction with other humans. If the vaccine minimizes not only the effects of the virus but also reduces its spread, I find the “my body, my choice” argument particularly weak.
(which is a different argument than whether anyone should be forced to get a vaccine).
The Natural Antibody Argument
There’s another angle to this lawsuit, one that I deem a much weaker argument. Schaerr-Jaffe, LLP, one of the law firms representing plaintiffs, issued the following statement:
This is not about how effective the vaccines are or whether United may mandate vaccination. The fact is that some people have sincere religious objections to the COVID-19 vaccine, and the Civil Rights Act of 1964 requires employers to respect and accommodate those beliefs. United has failed to do this. It’s especially outrageous that United refuses to grant meaningful religious exemptions to employees who have already suffered from a COVID infection and can prove that they are immune — and unable to infect others — by virtue of the resulting antibodies.
I am not comfortable with the antibodies argument, though I think it merits further study and I am alarmed that Facebook and Instagram are censoring discussion on this topic. The truth is, antibodies in patients who have recovered from COVID-19 do appear powerful, though it is far from clear 1.) how long they last and 2.) how effective they are at preventing re-infection.
Nevertheless, United can make its own judgment on antibodies: arguing science is simply not relevant to the legal issue. Even if natural antibodies are 100x more effective, United can still mandate its employees be vaccinated. The only real question is how medical and religious exemptions should be treated.
Placing exempted employees on unpaid leave is the functional equivalent of firing them. As much as I desire every employee to be vaccinated, I believe Delta has taken the better approach and United should consider something similar for the (presumably) small percentage of employees who will not meet company vaccination requirements.
I would think that higher healthcare costs and making employees pay for weekly or even daily testing would rather quickly sift out those who are sincere about their religious exemption, without having to probe the veracity of the religious claim.
United: The Case Has No Merit
A United spokesperson told Live and Let’s Fly:
The most effective thing we can do as an airline to protect the health and safety of all our employees is to require the vaccine – excluding the small number of people who have sought an exemption, more than 97% of our U.S. employees are vaccinated.
And we’ve been encouraged by the overwhelmingly positive response from employees across all work groups, since we announced the policy last month. We’re reviewing this complaint in greater detail but at this point, we think it’s without merit.
United refused to provide the number of employees who did seek an exception.
CONCLUSION
Beyond all the fluff of the lawsuit are two fundamental questions:
- What is the scope of reasonable accommodation in the context of an employer vaccine mandate?
- What constitutes an “undue hardship” and has that undue hardship been proven by the incidence of the virus?
Whatever your views on this lawsuit or the vaccine itself, I admonish you to keep looking, keep studying, and understand that as folks continue to die with COVID-19, the vast majority of them are unvaccinated. There is no other common denominator.
As for this lawsuit, my gut is that United will quietly reach an agreement with a limited number of employees to continue working despite not having a vaccination. In a sense, Untied has almost accomplished its mission objective with the high vaccination rate it now boasts among employees.
What are your thoughts on the United Airlines vaccine lawsuit?
image: United Airlines
I have a really easy way to tell if a religious belief is sincerely held… If it uses the word “vaccine,” it is not sincere.
genuine question for any/all Christians out there: did God deploy the pandemic on us, but not the vaccine?
I’ll second that and ask did their god not also deliver unto them the doctors who are recommending and/or developing the vaccine? The same doctors (delivered by their god unto his/her/its people) who they are calling liars or charlatans or “fake news” for recommending the vaccine?
Who are these Christians to decide what their god has or has not determined to be for the good of his/her/its followers? Seems pretty presumptuous of these Christians to be dictating what their god would or wouldn’t want. Susan B. Anthony said it best: I distrust those people who know so well what God wants them to do, because I notice it always coincides with their own desires.
No, the China virus was deployed by China
Do antivaxxers undergo chemo if they have cancer? Why do they go to hospital if they catch covid? Do they smoke? What religion says don’t get vaccinated? Where do you draw the line re: defiling one’s body. What does that even mean? “We could make an analogous argument for the pro-choice side as well.” What is the analgous argument? Is abortion contagious?
I’m speaking in generalities, of course. The pro-choice side argues liberty and autonomy trumps “potential” life. In a sense, this “healthcare” decision is framed as a decision between a pregnant person and their doctor and society has no right to intercede. The pro-life argument that a human being is being terminated is dismissed. Thus, “My body, my choice” is made supreme by the self-determination that no life is adversely impacted. The anti-vaxxers also reject that other lives may be adversely impacted by their decision.
Hmmmm! What do anti” immune health” people do for their immune system that most of us were so gracefully blessed with for immunity? Asking for a friend.
Contagious? It’s deadly you moron!
The antibody argument could be put to the test by testing every 2-4 weeks to determine antibody levels. I know someone who had no antibodies until the 3rd shot, then they had high levels. The person was suspicious because everyone else in the family felt a little tired after the 2nd shot except that one person, who felt fine.
As far as religious exemption, there are limits to that. In the US, polygamy is banned even though there are some that have legitimate religious beliefs allowing polygamy. Also voodoo killings are banned. The BBC has a story about an unsolved killing in 2001 of a boy in London. He was drugged with voodoo herbs, his head, legs, and arms chopped off and he was given as a sacrifice to the Nigerian water god by tossing his body in the River Thames.
https://www.bbc.com/news/uk-58415046
For pilots and flight attendants, it’s reasonable for the employer to require employees in these roles to be eligible to enter the countries that the airline serves. Which increasingly is ‘vaccine required for entry’. If a 777 pilot is not able to enter the countries used on 777 routes, then that employee is not much use to the company.
Which could be a much more effective way to shed employees who unreasonably refuse the vaccine. This is precisely what KLM recently warned while also telling employees they would not be forced to be jabbed:
https://liveandletsfly.com/klm-mandatory-vaccination/
97% of all United employees are currently vaccinated. United has done the correct thing. This is the USA people sue. But in this case, United should not settle a single claim unless forced to by the Supreme Court. The health of your fellow workers and thier now and future customers exceeds everything else.
Define, pleases
“meaningfully recedes”
That is the key question.
Matthew, where did you get the facts that most people dying with Covid are the unvaccinated? I would like to read those official documents.
Thanks
Literally, the quote from pretty much every hospital. Esp in the Red states. 95%+ of hospitalizations and deaths are among the unvaccinated.
So basically it’s only a pandemic these days among people like yourself. Have fun!
Well….Well…the usual drivel from this snarky nellie tw@t…..UA-NYC……triggered to comment on ANY vaxx story.
I wasn’t talking to you.
That was meant for the UA-NYC
Those #’s can be manipulated and announced the way they want us to believe it. I highly doubt you will hear much about the fact that 99.9% of people that get infected with covid survive. These things are censored.
Don’t sugarcoat the issue crew or readers of this thread becauae SAFETY is paramount getting pax from point A to point B, yes? That has always been the motto in this business since the beginning of pax servuce. Ppl have forgotten that due to the need for the almighty dollar. Everything and anything that gets your butt into a plane is just a frill. If crew or pax don’t want to be vaccinated or refuse to wear a mandated mask on-board go to another airline or mode of transport. We all know that someone’s going to have an opening. We’re tired of whinners who have selfish thoughts. Tell your problems to your mirror. That reflection is always listening to you.
“…as folks continue to die with COVID-19, the vast majority of them are unvaccinated. There is no other common denominator.”
I would say underlying conditions is a pretty significant common denominator. There are some healthy people who get sick for sure, but the people dying weren’t very healthy before they got covid.
Scott, your’re full of bullshit. I know 3 families that are mourning the loss of young, healthy folks who mistakenly thought that their good health would protect them.
Healthy people catch COVID and die if they’re not vaccinated. I’m tired of using tax dollars to support the bed decisions of the deluded.
I’m sorry for their loss, Mr. Bidness. I hope that, based on your recommendation, we one day can start using tax dollars for good decisions, instead of bed ones.
Congratulations, Matt, on tackling this issue. Sometimes it seems this whole vaccine issue reveals a great issue which is often at the core of choice.
“I’m in charge of my life and no one can tell me what to do”. The idea of the common good or looking out for the welfare of the next guy have long since universally disappeared.
What has happened is that when a culture or society can no longer agree on what is acceptable behavior- that society is in deep trouble. And not many could deny that that is where we are today.
Fear is often at the heart of the refusal- not science. Fear keeps us from giving and receiving love. So so sad.
Religious reasons are multiple
1) They use fetal cell lines from abortions and
2) They insert genetic code instructions into
the cell thus interfering with the human immune system God created.
https://www.titusinstitute.com/religiousexemption/relexprocess.php
A woman’s decision to terminate her pregnancy doesn’t put other airline employees’ & passengers’ health at risk.
If anti-vaxxer’s truly want it to be “my body; my rights” then they can stay at home where it’s only their body that is effected. They aren’t entitled to put other peoples’ health at risk as a result.
If the fetus is a human life, there are no airline workers or other passengers put at risk, but the fetus is not only put at risk, but destroyed.
That point can be (and is) debated, but you’re correct that the “my body, my choice” argument is not intellectually honest in the context of vaccines.
There is absolutely no reason for ANY employer to mandate these vaccines for the following reasons:
1. The vaccine does not prevent you from getting sick with Covid.
2, The vaccine does not prevent you from spreading Covid to others.
3. The vaccine does not prevent you from being hospitalized due to Covid.
4. The vaccine does not prevent you from dying or having complications.
In fact, I’d argue it makes it way more probable. There have over 700,000 injuries/deaths already from these jabs. And this very likely only represents 1% of those reported. <- This claim has been made by several medical professionals, but the MSM won't tell you this.
https://openvaers.com/covid-data/covid-reports?start=24
5. There are other treatable medications that work MUCH better than these vaccines – Ivermectin, Hydroxycloriquine, and many others. These ARE proven to work. The CDC is blocking it because they are cheap and affordable.
6. The vaccines are EXPERIMENTAL. Regardless of approved or not, all of these vaccines are in Stage 3 of their clinical studies, and there are no long term studies done.
7. The makers of these vaccines cannot be held accountable if something happens to you if you take this. They are immune from responsibility.
8. Covid has a 99.5% recovery rate or greater for people under 69.
Before anyone argues with me about these facts, I ask you to please look at alternative sources of news regarding these vaccines, plus the protocols hospitals are using to treat Covid patients. Almost every hospital uses Remdesivir which is killing way more patients than it helps. The MSM, Google, Facebook, Twitter, Instagram, YouTube are all blocking VERY important information from world renowned immunologists, virologists, hundreds of doctors and nurses, and ANYONE who questions the efficacy of these vaccines and these protocols. If this doesn't raise a red flag for you, I'm not sure what will.
Lastly, if you want to ignore all of the REAL evidence showing these vaccines do not work, and are not safe, then by all means you do what you want. But don't tell me I need to take it!
https://americasfrontlinedoctors.org/files/americas-frontline-doctors-white-paper-on-experimental-vaccines-for-covid-19
https://www.thrivetimeshow.com/business-podcasts/dr-bryan-ardis-how-covid-19-hospital-protocols-are-literally-killing-people-including-his-own-father-in-law/
You are 100% correct and speak only facts. unfortunately, facts aren’t welcomed on Live and Let’s Fly. Mainstream media views only.
Well said! Best post yet !
Great job Jimmy! Facts are the facts!
My friend, you completely misrepresent the VAERS data. Many of the reports are minor instances of mistaken record-keeping related to administering the vaccine. Many others are coincident health issues that may have absolutely nothing to do with the vaccine (i.e., people who get sick or die after having received the vaccine, but with no other link or relationship to the vaccine). And while your first points are technically true, no vaccine provides the kind of absolute protection by which you judge this one. But the vaccine greatly reduces the likelihood of illness, passing on the illness, and most importantly, severe illness, hospitalization, and death.
VAERS data disclaimer: “VAERS accepts reports of adverse events and reactions that occur following vaccination. Healthcare providers, vaccine manufacturers, and the public can submit reports to the system. While very important in monitoring vaccine safety, VAERS reports alone cannot be used to determine if a vaccine caused or contributed to an adverse event or illness. The reports may contain information that is incomplete, inaccurate, coincidental, or unverifiable. In large part, reports to VAERS are voluntary, which means they are subject to biases. This creates specific limitations on how the data can be used scientifically. Data from VAERS reports should always be interpreted with these limitations in mind.”
You sound just like a person that used to live in a BIG house and bully people that did Not bow to his word and then all of a Sudden NOT ONLY HIM BUT HIS ENTIRE FAMILY were VACANATIED. The Drugs have been PROVIN to be DANGEROUS to anyone that takes them. What United and the Other Companies are doing is the Right THING. They are trying to protect all their Employees and the Traveling Public.
As a Christian who refuses to be complicit in the murder of a human child by taking a vaccine that uses aborted fetal cell tissue in its development, testing and manufacture, I was grateful that the United employees won the first skirmish in court on Friday. I don’t understand how anyone can claim to be a Christian and yet benefit from the horror of child murder and I never will understand it no matter how many so-called Christians say it’s acceptable.
Would you believe it if you heard it from a reputable evangelical pastor?
“The Rev. Robert Jeffress of First Baptist Dallas, a Southern Baptist megachurch, said he and his staff “are neither offering nor encouraging members to seek religious exemptions from the vaccine mandates.”
“There is no credible religious argument against the vaccines,” he said via email. “Christians who are troubled by the use of a fetal cell line for the testing of the vaccines would also have to abstain from the use of Tylenol, Pepto Bismol, Ibuprofen, and other products that used the same cell line if they are sincere in their objection.””
https://www.sltrib.com/religion/2021/09/18/many-faith-leaders-say-no/
Questioning anothers religious beliefs based on your own interpretation of scripture or other religious text is a slippery slope. If the number of accommodations are relatively small, the impact on others will be limited and herd immunity will still be in place.
Matthew, I really appreciate this article and especially your level-headed reflections on the issues at play. The level of thoughtfulness on such charged issues is not what I would expect from a “travel blog.”
As a Christian whose tradition has benefited from “conscientious objection” to participation in war, I don’t see any valid reasons for religious exemptions to vaccines. Nor do most religious leaders (https://www.sltrib.com/religion/2021/09/18/many-faith-leaders-say-no/).
Still, like you I prefer Delta’s savvy– and likely more effective — approach. No need for mandates; just require people to take financial responsibility for their choices.
With UAL being classified as a Federal Contractor and covered under President Biden’s Executive Order as opposed to the OSHA Mandate – does it remove possible accommodations since periodic testing (allowed under OSHA mechanism) is not covered under the Contractor EO? Are we basically left with a singular accommodation of “unpaid leave” ?
Yes, no testing exception.