A group of United Airlines Inc workers challenging the company’s Covid-19 vaccine mandate are trying a bold legal tactic: seeking rapid action from a federal estimate, instead of waiting months for government agencies to review their claims.
Next week, United workers who want religious or medical exemptions will ask a Texas federal estimate 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 placed under intrusive inquiries, including a requirement that they acquire 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 situations, courts will weigh whether refusing a vaccine and facing suspension or termination consists of “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 confront 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 inner argument plays out. But none of those situations involved vaccine requirements, and it has been more than 30 years since a federal appeals court has weighed in on the issue.
A federal estimate in the Maine litigation last month expressed skepticism that the plaintiffs could show irreparable harm. U.S. District estimate 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 situations have been criticized by trial-level judges.
But already if past appeals court decisions upholding this kind of injunction bid keep good law, United Airlines argued in a court filing, its case is definite because the workers sued much earlier on in the time of action than the plaintiffs in many of those past situations.
Robert Wiegand, a lawyer for the plaintiffs in the United case, said the law is on the side of workers seeking to continue the position quo while a lawsuit is pending, citing several discrimination situations in which courts approved the tactic.
In one of those situations, Wiegand said, the employee had been suspended for 37 days. United by contrast, “proposes indefinite unpaid leave” for unvaccinated workers, he said.
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