A federal appeals court has refused to prohibit United Airlines from putting unvaccinated employees on unpaid leave while a case challenging the airline’s COVID-19 vaccine mandate makes its way through court.
In a divided ruling, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit rejected the bid Monday from employees challenging the Chicago-based airline’s policy on religious grounds. Employees allege the airline’s plans to put those who received religious exemptions on unpaid leave violates federal civil rights law.
The vast majority of United’s employees are vaccinated, but about 2,000 of them were granted religious or medical exemptions. A handful of employees filed suit against United over the policy in Texas federal court in September, one of several lawsuits challenging vaccine mandates by private and government employers.
In Monday’s ruling, the court voted 2 to 1 to find that the employees had not shown they would suffer “irreparable harm” by being put on unpaid leave while the case continues, and so were not entitled to an injunction against the airline.
But Judge James Ho, one of three judges to consider the appeal, issued a dissent saying he would have ruled for the employees.
“Make no mistake: Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith,” the judge wrote. “It forces them to choose between the two most profound obligations they will ever assume — holding true to their religious commitments and feeding and housing their children.
“To many, this is the most horrifying of Hobson’s choices. And it is a quintessentially irreparable injury, warranting preliminary injunctive relief,” wrote Ho, who was appointed to the bench by former President Donald Trump.
Gene Schaerr, an attorney with Schaerr Jaffe representing the employees, said “we’re glad Judge Ho was willing to protect our clients’ religious liberty, and we look forward to the opportunity to persuade a majority of the Court.”
The ruling follows a November ruling in the lower court in favor of the airline. United said at the time it was working to identify jobs that didn’t involve interacting with customers that unvaccinated employees could apply for until it’s safe for them to return to their current roles.
The airline said employees would all have a chance to apply for a non-customer-facing role, and that those who didn’t take one would go on leave.
“We know that the best way to keep everyone as safe as we can is for everyone to get vaccinated, as nearly all United employees have chosen to do,” the company said in a statement Tuesday.