A pilot and a flight attendant for United Airlines will suffer “irreparable harm” under the airline’s COVID-19 policy that makes them choose between getting vaccinated in violation of their religious objections or going on unpaid leave, a divided federal appeals court panel in New Orleans ruled Thursday.
The 5th U.S. Circuit Court of Appeals’ 2-1 ruling doesn’t block the airline’s mandate. But it says a lower court judge in Texas must consider temporarily blocking the requirement for the employees while they fight United’s vaccine policy.
The decision to get vaccinated or go on leave “is an impossible choice for plaintiffs who want to remain faithful but must put food on the table,” said the majority opinion from Jennifer Walker Elrod and Andrew Oldham.
They said the lower court judge erred by stating that the employees did not face irreparable harm, and sent the case back to him to consider other factors — including whether the two employees are likely to ultimately win their court battle.
The third judge on the panel, Judge Jerry E. Smith, rejected the majority’s finding in a stinging, lengthy dissent. Smith said the lower court judge’s denial of an injunction last year should stand.
“For every conceivable reason that the plaintiffs could lose this appeal, they should,” Smith wrote, saying his fellow panel members’ ruling went against laws and court precedents.
He rejected the idea that the two faced irreparable harm, saying the federal Civil Rights Act provisions at play in the case provide them with the ability to sue for damages should they win.
And, he said, the employees aren’t likely to win. Among the reasons: Smith said the religious discrimination complaint falls because United made efforts to accommodate religious objections of workers, including offering employees alternative jobs not involving the public and unpaid leave as an alternative to being fired.
“Even if unpaid leave is not a reasonable accommodation, the plaintiffs have not shown that United can accommodate them without undue hardship, so they cannot succeed on the merits,” Smith wrote.
United Airlines said in an emailed statement that it will continue to defend its policy. It said employees who don’t face customers and who can’t or won’t take the vaccine for medical or religious reasons continue to work with masking and testing requirements. Pilots and flight attendants can opt for paid positions that don’t require contact with the public, the statement said.
Thursday’s ruling returns the case to U.S. District Judge Mark Pittman in Fort Worth, Texas.
Elrod was nominated to the court by President George W. Bush; Oldham, by President Donald Trump; Smith, by President Ronald Reagan.