Southwest Airlines Vaccine Mandate
Southwest Airlines has announced that all Employees will be required to be vaccinated against COVID-19. This mandate is in accordance with President Biden’s signed Executive Order 14042, mandating all Federal Contractors like Southwest Airlines comply with the order’s vaccine mandate provision. The required mandate becomes enforceable upon Southwest Airlines due to their holding multiple Government contracts.
Since the Federal Employee/Contractor Order does not allow for weekly testing, all Southwest Airlines employees will be required to be fully vaccinated against COVID-19 no later than December 8, 2021. Employees that cannot be vaccinated due to a qualified medical disability or a sincerely held religious belief may request a reasonable accommodation from the Company. Please refer to the Company’s Q and A for instructions on requesting such accommodations(s) from Southwest Airlines.
TWU Local 556 is committed to making sure the Company abides by all applicable reasonable accommodation provisions contained in the mandate, and all contractual provisions concerning due process and just cause.
Please view the entire Legal Update in its entirety below:
VACCINATION MANDATE FOR FEDERAL CONTRACTORS
AND FEDERAL COURT LITIGATION AGAINST UNITED AIRLINES
Federal Mandates
The Biden Administration is moving forward on two separate fronts to augment the number of employees of private employers who are subject to mandatory COVID-19 vaccinations. The first, which has been discussed extensively in the media, is the requirement that private employers with 100 or more employees ensure that their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on a weekly basis. This mandate shall be implemented via an Emergency Temporary Standard (ETS) by the Department of Labor’s Occupational Safety and Health Administration (OSHA). OSHA will publish the ETS in the Federal Register.
The Biden Administration has also advanced on the parallel track of requiring private employer vaccination plans via its contracting power. On September 9, 2021, President Biden signed Executive Order 14042, which mandated the development of “COVID-19 safeguards” applicable to federal contractors.
Pursuant to the Executive Order, on September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued Guidance for Federal Contractor and Subcontractors (Guidance), which provided that federal contractors will be required to provide for the vaccination of their employees “except in limited circumstances where an employee is legally entitled to an accommodation” based on religious beliefs or disability, which would include medical conditions. Employees are deemed “fully vaccinated” two weeks after their completion of a two-dose or single dose vaccination process.
By its own terms, the Executive Order became effective “immediately.” The Guidance more specifically references December 8, 2021, as the date by which covered contractor employees be fully vaccinated.
With respect to religion and disability-based accommodations, the Guidance provides that the contractor is responsible for evaluating such requests regardless of the employee’s place of performance.
Airlines’ Response
United Airlines, American Airlines, Alaska Airlines, and JetBlue Airways have all announced programs to demand that their respective employees be fully vaccinated as early as December 8, 2021. Southwest has also announced that it will implement a mandatory vaccination program
With respect to the “reasonable accommodation” of individuals who have objections to vaccination based on grounds of religion or disability, United has adopted a policy of requiring these employees who are “customer-facing” to go on unpaid leave. In recently filed court papers, United has stated that it intends to offer non-customer facing employees (e.g., ramp and maintenance employees) a testing alternative once practicable. American has reportedly adopted a policy of demanding proof of vaccination to report to work.
Nonetheless the airlines have also reportedly opposed any federal government policy of requiring passengers to confirm vaccination or provide a negative COVID-19 test result prior to board a flight.
Federal Litigation
On September 21, 2021, a class action lawsuit was filed in the United States District Court for the Northern District of Texas on behalf of United Airlines employees who assert that their rights under Title VII and/or the Americans with Disabilities Act (ADA) were violated by the airline’s limitation of its reasonable accommodation of their refusal to submit to COVID-19 vaccination to unpaid leave without benefits. The action seeks injunctive relief that would prohibit United from terminating or placing on indefinite paid leave any employee who has a religious or medical basis for seeking an accommodation with respect to the vaccination mandate.
Local 556’s legal counsel has reviewed the court filings to date and advised that the plaintiffs’ action may be subject to dismissal on several different grounds, including the following:
- In order for a class action to proceed, the named plaintiffs must demonstrate a commonality between themselves and others in the named class. In this case, the requisite commonality may be difficult to establish in view of distinctive facts that may come into play for class members such as nature of religious beliefs, sincerity of religious beliefs, nature of alleged disability, and job classification.
- Typically, a Title VII or ADA plaintiff must first exhaust the Equal Employment Opportunity Commission’s evaluation process and obtain a Right to Sue letter prior to bringing a federal court action. Courts are split on whether a plaintiff may obtain injunctive relief to preserve the status quo under the circumstances presented in this case.
- To succeed, the plaintiffs must demonstrate that they will suffer “irreparable injury” in the absence of injunctive relief. Courts are split as to whether lost wages and benefits satisfy the requisite “irreparable injury” standard because, arguably, that resulting damage may be subsequently cured by a monetary award.
- Under Title VII, an employer may deny an accommodation request if it would impose more than de minimis costs. United has argued that any court mandated company-wide testing alternative would impose monetary, administrative, and health-related costs that would exceed the de minimis standard. Indeed, there is relevant precedent that holds that even the “mere possibility” that religious accommodation might adversely affect co-workers would exceed that standard.
- Part of the mandatory injunctive analysis is to consider whether the public interest favors issuance of the injunctive relief. United has argued that, since universal vaccination would reduce the spread of COVID-19, the public interest factor cannot be satisfied.