By Chris Avcollie,
On witnessing the dramatic footage of the tragic crash of the Hindenburg in 1937, radio broadcaster Herbert Morrison famously exclaimed, “Oh, the Humanity!” The phrase has become a stock comment for any situation which is disastrous and impactful to human beings. Some observers of the legal conflicts surrounding employer’s Covid-19 vaccine mandates might well find occasion for the phrase.
Last month we published an article titled, “’Take This Vaccine and Shove It!’” Should Employers Get to Decide What Their Employees believe?”. The article identified a trend in contemporary employment law wherein many employers are neglecting to follow clear legal guidance which suggests that where employees seek religious exemptions from the recent Covid-19 mandates at work, their requests for religious accommodation should be approved with little scrutiny barring some specifically articulated undue hardship for the employer.
In the above referenced article, I cited a recent Covid-19 vaccine mandate issued by United Airlines which included a requirement that any employees who requested either medical or religious accommodations to be exempt from the vaccine would be placed on unpaid administrative leave pending resolution of the accommodation. My contention last month was that this sort of policy is itself a form of retaliation and an unlawful denial of the employees’ right to request and to receive a religious accommodation.
On Tuesday October 12, 2021, in Texas, a United States Federal District Court Judge Mark Pittman ordered a temporary injunction prohibiting United from placing its workers who requested exemptions on unpaid leave. While the Court’s order was temporary (On October 13, 2021 an evidentiary hearing is scheduled before Judge Pittman to decide on a longer-term injunction) and may be lifted in subsequent hearings, the ruling raises an interesting issue. Injunctions are intended to prevent irreparable harm.
Parties seeking an injunction, in this case six United workers who had filed for exemptions and were going to be placed on unpaid leave, are required to show the Court that if the injunction is not granted that permanent and irremediable harm would occur. As an attorney who has litigated a number of temporary and permanent injunctions, this is not an easy standard to meet. The party seeking the injunction must convince the Court that the harm likely to occur will be of a type and to such an extent that money damages cannot repair the harm.
In the case before the Honorable Judge Pittman, while being placed on unpaid leave is certainly a hardship for any working person, which type of harm can (presumably) be remedied by an award of back pay with interest, etc. In other words, it can be fixed with money at a later time. More on this later. So if its not the lack of pay that will cause irremediable harm to the suspended employees, what type of harm might they incur which is irremediable by money damages?
Perhaps the most irreparable harm might be that the employees could be compelled by the extreme hardship of being indefinitely denied their livelihood to get the vaccine against their will. This type of harm is both serious and irreparable. How can one be compensated with money for being forced by economic necessity to violate one’s closely held beliefs about God and morality? It is difficult not to believe that the purpose of placing employees on unpaid leave would be to force as many as possible to give up their request for accommodation and to just get vaccinated. That’s the whole point of a mandate, right? If the company was really concerned about the employee’s welfare, why not place them on paid administrative leave so there was no pressure to compromise their beliefs?
For those seeking medical exemptions, their health and wellness may be at risk if they are forced to take the vaccine. What percentage risk of suffering a life-threatening blood clot from a vaccine to which one is vulnerable will be large enough to justify losing one’s job? How can we require those who have serious risk of complications from the vaccine to take that risk?
Further, the idea that sudden suspension of one’s paycheck could somehow be repaired with money at a later time is also fallacious. The back-pay will not compensate an entire family thrust into existential terror at the prospect of being unable to pay mortgages, rent, health insurance co-pays, or to buy needed medicine. Not to mention food. People need that too. After a family stripped of its income has been forced into default with creditors and their credit is impaired, or they go into foreclosure, how will back-pay help them repair that damage? As an experienced employment lawyer, I can tell you they would never recover enough back pay to repair that damage. The attorneys for the six United workers argued that the unpaid leave was not an accommodation but rather an adverse employment action. They were right of course. The idea that an unpaid leave could be anything but an irreparable disaster for a working family is a proposition about which one almost feels absurd arguing.
From the employer’s perspective the alternatives may seem equally risky. Continuing to employ persons whom they know are at significant risk of contracting and transmitting the disease in a public-facing industry carries its own liabilities far beyond what might occur to individual employees. Failure to adequately protect their customers from Covid-19 could result in significant liability. Costs associated with increased testing, personal protective gear, and operational concerns around distancing etc., is costly to employers. Paying workers to stay at home if they assert an exemption is also costly and may be an invitation to mass labor shortages in their company if employees try to take unfair advantage of a liberal paid leave policy.
While the temporary injunction is just a blip on the radar screen of the United case, (it could be removed tomorrow) it raises some issues employers and employees should consider. The core issue for me is: Are the employees requesting exemptions being considered a means to an end or as an end in themselves? If they are a means to an end, then placing them on indefinite unpaid leave and forcing as many as possible to get a vaccine they object to on religious grounds is a reasonable solution. If however, they are an end in themselves, they must be treated as human beings and are entitled to individual dignity, consideration, and respect. Concern for their physical and mental well being is paramount. If United had asked this question first, then placing its employees on unpaid leave because they requested an accommodation provided by law would be out of the question.
Since working in our society is not optional but mandatory, those who work should have legal protections to ensure their livelihood cannot be “suspended” without a court order. Instead of the six United workers being obligated to hire lawyers to get a judge to temporarily block the suspension of their paychecks without cause, the employer should have to go to court and convince a judge that there is an urgent need to suspend the employees’ pay that would result in irreparable harm greater than that imposed on the employees before they were permitted to suspend anyone without pay.
While cases like the United case discussed here are going to play out in court rooms around the nation; employers, employees, and judges would do well to focus first on the human aspect of these conflicts. There is no remedy at law for a society that disregards the humanity of its members. Let’s all permanently enjoin that line of thinking first!