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.
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