United Airlines Goes To The Supreme Court Over Covid Vaccine Mandate — Five Years Later, 1,000 Workers Still Suing

United Airlines put customer facing employees with approved religious vaccine exemptions on unpaid leave. The Court of Appeals for the Fifth Circuit let a lawsuit by 1,000 workers proceed as a class action. The airline is asking the Supreme Court to intervene. In 2021, United approved religious exemptions from its 2021 employee vaccine mandate. They told customer-facing workers that their accommodation was to stop working and stop getting paid. Roughly 1,000 of those employees are suing for religious discrimination. United has argued that the Supreme Court should reverse the appeals court arguing that its approach dramatically expands the space for class actions broadly. United Required Every U.S. Employee To Be Vaccinated United announced its vaccine mandate in August 2021, ahead even of the Biden administration. This was during the airline’s ‘woke era’ where it sought to ingratiate itself with Democrats in power (before swinging to MAGA during the Trump era). The airline’s employees had to be vaccinated unless they received a medical or religious exemption. Those seeking religious accommodations had to explain the belief preventing vaccination and provide a third party attestation. 5,885 employees requested accommodations, and United approved 4,070 of them. It planned to put nearly all exempt employees on unpaid leave starting in October 2021 and keep them there until the pandemic had “meaningfully receded.” Employees sued. Some non-customer facing employees, including mechanics and ramp workers, were allowed to continue working under masking-and-testing rules. Some customer service employees could work remotely. But customer-facing employees like pilots and flight attendants were forced onto unpaid leave in November 2021. More than 2,200 employees received unpaid leave as their accommodation. United permitted them to return to their regular jobs in March 2022. The carrier argued that the mandate was necessary to protect employees and passengers during a pandemic that had already killed dozens of its workers. The employees argued that indefinite unpaid leave was not a genuine accommodation. It was designed to make the cost of exercising their rights prohibitive. CEO Scott Kirby had warned that employees who “all of a sudden” decided they were “really religious” would be putting their jobs on the line by requesting accommodations. A class action has been developing since six employees sued for religious and disability discrimination in September 2021. A class certified in 2022 of 1,000 religious accommodation recipients who were put on unpaid leave (and excluded medical accommodation employees, and those allowed to work under mask and testing rules). In March of this year, a three-judge panel of the Fifth Circuit upheld this result saying the group constituted a legitimate class, since for everyone the same questions could be answered at the same time – whether unpaid leave was a reasonable religious accommodation; whether United have used masking, testing, reassignment or another alternative; and whether those alternatives would have imposed a substantial hardship on the airline. Since United had reviewed and approved the religious requests after receiving explanations and attestations and each employee had accepted significant financial cost of unpaid leave, the court determined this was enough common evidence to group them together into a class, and that back pay could be calculated using United’s payroll records. The excellent Judge Don Willett agreed that the class should be upheld under the deferential standard governing appeals of certification decisions, but he strongly questioned whether religious sincerity could be treated as a common issue. If United contests an employee’s sincerity, a jury may need to hear that employee’s testimony and evaluate credibility individually. He noted that the district court could decertify the class later if resolving hundreds of sincerity disputes became unmanageable. United’s Supreme Court petition empasizes that a jury has to examine hundreds of individual applications and employee beliefs. They say the potential for alternate jobs differed by airport, qualifications, and compensation. Whether masking and testing were feasible depended on individual job duties, flight schedules, and reserve staffing levels. and airport operations. Backpay depends on individual schedules, earnings and efforts to find other work. They say that the need to determine hundreds of sincerity disputes (for which of the 1,000 actually remain in the class), and ultimately individual damages proceedings for each of those members, means that a supposedly more efficient class action turns into hundreds of mini-trials and weakens the Supreme Court’s requirement that a classwide proceeding generate common answers, not just present common questions. And the same reasoning supports a broadening of class actions across areas like employment discrimination, fraud, securities claims and mass torts. At the same time though United reviewed each employee’s request and approved them as religious. It imposed the same unpaid leave policy. So they’re the ones who created the common situation. And class actions proceed all the time where liability can be decided collectively while damages need to be calculated individually. The Supreme Court has repeatedly enforced meaningful limits on class certification. Judge Willett outlined clearly a case for individual religious beliefs not being proven collectively. But the district court hasn’t even established a final procedure for evaluating class membership or damages yet. It could even conclude that individual inquiries are unmanageable and decertify the class itself. So it may be early for the court to intervene. There’s no clear circuit split here, the Fifth Circuit’s ruling was unanimous (Willett wrote a concurrence). And most Supreme Court petitions are denied. So that seems like the most likely outcome here. If the court did take the case, though, it seems like United would be favored to win. The mere fact that the case was accepted yields a likelihood that at least four justices were looking to overturn the Fifth Circuit on this, believing it had weakened its Wal-Mart v. Dukes class action narrowing, and United’s argument that each employee’s sincerity is a separate factual and credibility question fit the court’s approach to class certification broadly. It says something about our legal system though that we’re still arguing over Covid vaccine mandates five years later. Topics on this page