United Airlines workers eye rare legal move to fight vaccine mandate

United has told employees seeking exemptions they must be fully vaccinated by the end of October or face indefinite suspension without pay

United Airlines employees work at ticket counters in Terminal 1 at O'Hare International Airport in Chicago. (Copyright 2020 The Associated Press. All rights reserved.)

A group of United Airlines Inc workers challenging the company’s Covid-19 vaccine mandate are trying a bold legal tactic: seeking swift action from a federal judge, rather than waiting months for government agencies to review their claims.

Next week, United workers who want religious or medical exemptions will ask a Texas federal judge to temporarily block the airline from firing them or placing them on leave for not being vaccinated.

The group, which includes pilots and flight attendants, filed a class action in September, accusing United of failing to properly vet exemption requests. They claim that workers who sought exemptions were subjected to intrusive inquiries, including a requirement that they obtain letters from pastors.

United has said the lawsuit is without merit, and that it has seen an overwhelmingly positive response from employees since announcing the mandate.

The plaintiffs are seeking to circumvent the typical requirement that discrimination claims first be reviewed by the U.S. Equal Employment Opportunity Commission or a state anti-bias agency. It can take up to six months before such agencies can issue a so-called “right-to-sue” letter.

In Maine, meanwhile, a group of state healthcare workers is trying a similar tactic. They are seeking a preliminary injunction to stop enforcement of a requirement that most healthcare workers get fully vaccinated by Oct. 1 or possibly lose their job. Unlike most states, Maine does not allow for religious or philosophical exemptions.

A ruling in the Maine case is expected soon.

In both cases, courts will weigh whether refusing a vaccine and facing suspension or termination constitutes “irreparable harm,” which must be shown to win a preliminary injunction.

United has told employees seeking exemptions they must be fully vaccinated by the end of October or face indefinite suspension without pay.

If the workers are successful, it could inspire other plaintiffs to go straight to court over vaccine mandates, legal experts said.

Some courts in the past have allowed plaintiffs to bypass the EEOC and seek immediate relief while the underlying dispute plays out. But none of those cases involved vaccine requirements, and it has been more than 30 years since a federal appeals court has weighed in on the issue.

A federal judge in the Maine litigation last month expressed skepticism that the plaintiffs could show irreparable harm. U.S. District Judge Jon Levy suggested that if they did not get vaccinated and were fired, they could file complaints with the EEOC and receive a “right to sue” letter.

United has argued that past rulings allowing workers to seek injunctions in discrimination cases have been criticized by trial-level judges.

But even if previous appeals court decisions upholding this type of injunction bid remain good law, United Airlines argued in a court filing, its case is distinct because the workers sued much earlier on in the process than the plaintiffs in many of those past cases.

Robert Wiegand, a lawyer for the plaintiffs in the United case, said the law is on the side of workers seeking to maintain the status quo while a lawsuit is pending, citing several discrimination cases in which courts approved the tactic.

In one of those cases, Wiegand said, the employee had been suspended for 37 days. United by contrast, “proposes indefinite unpaid leave” for unvaccinated workers, he said.

Reuters