Federal court must reconsider religious exception to United employee vaccination mandate

A federal appeals court has ordered a lower court to reconsider an exception to United Airlines’ COVID-19 vaccination mandate for certain employees. The majority of the U.S. 5th Circuit panel ruled in favor of requiring the trial judge to reconsider allowing these workers to continue at their jobs as normal without getting vaccinated. A majority of a three-judge panel ruled on a very narrow issue, but in seething dissent, one judge said he would rather “hide my head in a bag” than join in the unpublished decision which, according to him, would not be confirmed on the merits.

United spokesman Joshua Freed said the company would continue to “strongly defend” a policy that has “saved lives and kept our employees out of hospital”.

The case was brought by a group of United employees challenging the airline’s policy that all employees receive the vaccination or remain on unpaid leave. Some had requested medical accommodations. Two of the workers, who requested religious exemptions, “out of concern that aborted fetal tissue was used in the manufacture of COVID-19 vaccines,” the ruling says. The majority of the New Orleans court found that these exempt workers would suffer irreparable harm if the warrant remained in place, because “they are actively coerced into violating their religious beliefs.”

In an unsigned 22-page decision by U.S. Judges Jennifer Walker Elrod and Andrew S. Oldham, the court reversed the decision and returned the case to the Northern District of Texas Trial Judge for reconsideration of the legality of the warrant. vaccine business. regarding people with religious exemptions. The majority said the trial court must properly analyze the irreparable harm of making an employee choose between “the job or the jab”.

The third judge on the panel, Jerry E. Smith, wrote a signed 57-page dissent vehemently questioning the wisdom of his colleagues’ conclusion, narrow as it was, that the lower court’s reasoning on the warrant was wrong.

Smith said his colleagues’ findings were “head-scratching.” And then Smith offered a searing indictment, highlighted in a yarn by prolific appellate lawyer and tweeter Raffi Melkonian.

The dissenting judge wrote: “If I ever wrote an opinion authorizing a preliminary injunction for the plaintiffs without a cause of action, with no likelihood of success on the merits (for two reasons) and devoid of irreparable prejudice, despite the text, the politics, and the history of the relevant law, despite the balance of actions and the public interest, and despite decades of contrary precedents from this circuit and the Supreme Court, while inventing and twisting the facts to fit them to my incoherent reasoning”, then “I would hide my head in a bag. He went on to say, “Maybe the majority agrees. Otherwise, why retreat behind an unsigned and unpublished opinion? »

Melkonian’s analysis, which had thousands of likes about an hour after it was posted, brought to light a footnote in which the dissident jurist took on the secretive nature of unsigned opinions – often referred to as a ‘shadow file’ – rather than allowing a full court or “en banc” hearing. The judge wrote: “The ‘unpublished’ device is a clever way to avoid, or at least try to avoid, en banc review. We have judges reluctant to grant en banc hearings except in the most extreme situations. The fact that a notice is not published provides just another reason to vote against en banc review. But by today’s decision, the Good Ship Fifth Circuit is on fire. We need everyone on deck.

United said about 2,000 employees have been approved for religious or medical accommodations. None of these employees were forced into unpaid leave, according to documents provided by the airline. Instead, they’ve taken on other paid work options where they don’t have direct contact with customers — working with ramp service, as mechanics, or in other “under the wing” jobs. “. These workers have masking and testing requirements. Customer service representatives and others have been moved to temporary assignments without direct interaction with customers.

But the airline has no way for pilots and flight attendants to do their jobs without being vaccinated “due to their unique working conditions as well as constraints imposed by union contracts and federal regulations.” This group of workers have been placed on temporary unpaid leave, but the company will give them “preferred consideration” to a wide range of available paid positions if they want to earn a paycheck.

Editor’s note: This story has been updated to correct an inaccurate summary of the decision and its effects.

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