Southwest Airlines Vaccine Mandate: Update #2

• TWU Local 556, as your exclusive bargaining representative, is bound by a duty of fair representation, which requires the Union to represent all covered employees in good faith and without discrimination.
• We have been in constant communication with our legal counsel on the vaccination mandate issue. Counsel has been actively monitoring pending litigation, including the federal lawsuit brought by a proposed class of United Airlines employees. The outcome of that matter and others will guide the legal landscape on this issue. Please be assured all decisions regarding legal action, whether through bargaining, the contractual grievance process, or initiation of court action, are done so with thorough legal analysis and with the recommendation of counsel balancing all relevant considerations to support your Union and its Membership as a whole.
• It is important, given the Company’s vaccination mandate pronouncement, to focus on the following timelines and considerations:
  • As Company materials provide, if you are already fully vaccinated, you need to upload proof of vaccination to Workperks on SWALife no later than 1200 CST, November 24, 2021, in order to receive your two (2) days of incentive pay and be considered fully vaccinated by December 8, 2021, deadline adopted by Southwest through its implementation of the White House’s Executive Order 14042.
  • If you have not yet been vaccinated against COVID-19, you need to start the process as soon as possible and have received your last dose AND uploaded your proof of vaccination no later than 1200 CST, November 24, 2021, in order to receive your two (2) days of incentive pay AND be considered fully vaccinated by December 8, 2021 deadline adopted by Southwest through its implementation of the White House’s Executive Order 14042.
  • If you intend to seek a legal exemption and reasonable accommodation because of a medical condition or sincerely held religious belief, you need to start the accommodation request process as soon as possible. The process could take some time to complete The  Company’s November 24, 2021, and December 8, 2021, deadlines will apply until such time as an exemption and reasonable accommodation is granted by the Company. The reasonable accommodation process is governed by federal law, which will be discussed in greater detail below.
  • If you are called in for a Fact-Finding Meeting and/or terminated, the Union will (at your request) represent you, file all applicable grievances, and fight to make you whole again.
  • This, however, does not guarantee an outcome to either remove issued discipline or reinstatement.

  In closing, your Union is fully aware of the pain we have all been through over the past twenty months. From COVID illnesses and deaths, mask mandates, unruly passengers, irregular operations, food availability, and more. It has been a trying time to be a Southwest Flight Attendant, yet, we all share the common goal of turning the corner on this pandemic and returning to normalcy in our careers and the profession we all cherish.

As you are aware, the Company announced its implementation of a mandatory COVID-19 vaccination program following issuance of the Biden Administration’s Executive Order related to companies, such as Southwest, that maintain contracts with the federal government.

Overall, Local 556 believes COVID-19 vaccinations will have a beneficial impact on the health of our members and the passengers we serve.  At the same time, it must be recognized that these new regulations are subordinate to federal law that may impose on an employer an obligation to reasonably accommodate those employees who have a bona fide objection to vaccination based on religious faith or disability.

Under federal law, the accommodation obligations relating to religious faith or disability arise under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disability Act (ADA), respectively.  Claims under either statute must initially be filed with the Equal Employment Opportunity Commission (EEOC).

EEOC charges constitute extra-contractual claims and, therefore, Local 556 will not provide representation services for those members filing those charges.  Nevertheless, Local 556 deemed it appropriate to task the Union’s legal counsel with providing an overview of the salient issues related to the assertion of a religious or disability-based vaccination exemption request.

Members seeking to assert such an exemption are strongly advised to obtain private legal counsel to guide them through the process of seeking an exemption from Southwest.  The Company’s rejection of a legitimate exemption request may give rise to a cause of action under federal law to be filed, initially, with the EEOC.

A.    General Standard

Title VII requires an employer to provide reasonable accommodations for employees who, because of a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would impose an undue hardship on the operation of the employer’s business.

B.    Sincerely Held Religious Belief

For Title VII purposes, the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.  However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Federal regulation has defined religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.  The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

In Title VII litigation related to religion-based requests for reasonable accommodation, several courts have held that the employee bears the burden of proof of demonstrating that he/she has a sincerely held religious belief that conflicts with the employer’s policy.  Therefore, an employee should be prepared to substantiate both the sincerity of his/her belief and the nature of the conflict with Southwest’s vaccination policy.

C.    Reasonable Accommodation

Where an employee has established that he/she has a sincerely held religious belief, practice or observance that would prevent him/her from obtaining a COVID-19 vaccination, the employer has an obligation to accommodate that individual provided that it would not impose an undue hardship on the operation of the employer’s business.

The EEOC has recognized reasonable accommodation of an unvaccinated employee might include having him/her wear a face mask or other protective gear, improving ventilation systems, working at a distance from co-workers or non-employees, and/or getting periodic tests for COVID-19.  Significantly, the EEOC has recommended as a “best practice” that an employer introducing a COVID-19 vaccination policy should notify all employees that the employer will consider requests for reasonable accommodation based on religious belief or disability on an individualized basis.

D.    Undue Hardship

Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.

Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.

A.    General Standard

If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

Thus, even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship).

B.    Disability Analysis

Whether an employee has a disability that conflicts with a mandatory vaccination lends itself to a more objective analysis than the question of religious exemption.

The CDC has stated that it considers a history of the following to be a contraindication to vaccination with COVID-19 vaccines:

• Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine
• Immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine

Of course, one must keep in mind that an allergic reaction to a component of one of the mRNA vaccines (Pfizer and Moderna) may not preclude the usage of the Janssen vaccine (Johnson & Johnson) and vice versa.

C.    Reasonable Accommodation

See discussion under I.C above.

D.    Undue Hardship

As referenced above under Section I.D, under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  By contrast, under the ADA, “undue hardship” means an action that required “significant difficulty or expense.”  42 U.S.C. § 12111(10)(A).  From the employer’s perspective, the ADA standard is substantially more demanding than the hardship standard under Title VII.  This higher standard under the ADA is deemed necessary in light of the crucial role that reasonable accommodation plays in ensuring meaningful employment opportunities for people with disabilities.

We hope the above analysis is useful to our members either in the present context.