By Bethany Blankley

The Fifth U.S. Circuit Court of Appeals ruled 2-1 that a lower district court must reconsider its decision when it rejected a request for injunction by plaintiffs to halt United Airlines’ COVID-19 vaccine mandate.

The court’s ruling returns the case to U.S. District Judge Mark Pittman in Fort Worth, Texas.

Last November, Pittman rejected a request for an injunction to block United Airlines from placing employees on unpaid leave while the court considers the case. Pittman found the plaintiffs failed to “show they would suffer imminent, irreparable harm.”

However, the majority on a Fifth Circuit panel disagreed. Two judges, Jennifer Walker Elrod and Andrew S. Oldham, ruled United’s policy forces employees to choose “between pay and adhering to religious convictions,” which violates federal law.

The employees who remain on unpaid leave are “actively being coerced to violate their religious convictions,” which is an irreparable harm, they ruled.

United Airlines, which is headquartered in Chicago, became the first major U.S. airlines carrier to mandate the COVID-19 shots for its roughly 67,000 employees as a condition of employment. Employees were initially told to get the COVID-19 shots by Sept. 27, 2021, or face termination.

Last August, Liberty Counsel sent a demand letter to United Airlines on behalf of scores of airline employees whose religious exemptions weren’t granted.

By December, the airline was facing a pilot shortage because not all employees would comply with the mandate.

At a Dec. 15, 2021, U.S. Senate Commerce, Science, and Transportation Committee hearing, United Airlines CEO Scott Kirby said, “We have almost 100 airplanes effectively grounded right now – regional aircraft, because there’s not enough pilots to fly them, which means we just can’t, at the moment, fly to all the small communities that we would like to.”

Kirby defended United’s mandate, saying at the time that roughly 200 employees had been fired, including six pilots; 80 were on unpaid leave out of roughly 13,000.

The Fifth Circuit judges wrote, “United has presented plaintiffs with two options: violate their religious convictions or lose all pay and benefits indefinitely. That is an impossible choice for plaintiffs who want to remain faithful but must put food on the table. In other words, United is actively coercing employees to abandon their convictions.

“Indeed, at a town-hall meeting, United’s CEO revealed United’s sentiments towards parties like plaintiffs. He noted that ‘very few’ religious exemptions would be granted. And he warned that any employee who ‘all the sudden decid[ed], ‘I’m really religious’ would be ‘putting [her] job on the line’ by requesting an accommodation.”

The judges are referring to a statement Kirby made as reported by CBN News: "Any pilot, or any employee that all of the sudden decides, 'I'm really religious,' you're putting your job on the line. You better be very careful about that.”

In response, United staff formed a group called “Airline Employees for Health Freedom,” (AE4HF). Its co-founder, Sherry Walker, a United Airlines captain, said, "We are standing for our religious freedom and our medical autonomy, and we believe we are entitled to the protections under Title VII.”

At the Senate hearing, Sen. Ted Cruz, R-Texas, took issue with the airlines’ position, especially since major airlines received more than $70 million in Cares Act bailouts.

"This morning, I spoke with a 10-year flight attendant for United," Cruz said at the hearing. "She is a Hispanic single mom from Texas who you fired. She received her termination notice tied to the trash can through her front gate."

In addition to employees who lost their jobs, the judges wrote, “… even those who successfully requested a religious exemption were deprived of all meaningful employment benefits by being placed on indefinite unpaid leave. Thus, plaintiffs are continually subjected to a coercive choice between pay and adhering to religious convictions.”

The appeals court decision, Liberty Counsel founder and Chairman Mat Staver said, was the right one, because “United Airlines cannot coerce employees to choose between their career or adhering to their religious convictions. United is now feeling the financial effects of not accommodating religious exemptions for its employees. United employees can safely work without the COVID shots. However, the airline is violating federal and state law and jeopardizing the health and safety of their employees and passengers by pressuring them to get the COVID shots or be terminated.”

The ruling comes after a Texas congresswoman and the state of Texas sued the Centers for Disease Control and Prevention, challenging the constitutionality of its requirement that people wear masks on commercial airlines, conveyances, and at transportation hubs.

The lawsuit is likely to go to the U.S. Supreme Court, the Texas Public Policy Foundation said, where it’s likely to prevail. The statute being used to justify the CDC airline mask mandate is the same one used to justify the eviction moratorium over which TPPF sued and the Supreme Court struck down last year.

Of the Fifth Circuit’s ruling, TPPF General Counsel Rob Henneke told The Center Square, it “reaffirms strong constitutional protections that defend religious liberty. However, religious freedom should not be seen as the only basis for citizens to lawfully decline COVID mandates. At their core, these COVID vaccine mandates violate individual bodily autonomy and should not be required for any person.”

TPPF also sued over the OSHA private employer vaccine mandate and won.

“Our clients believe that the decision to be vaccinated should be made by individuals and their doctors not the federal government,” Henneke said. “In addition to turning private employers into federal vaccine enforcers,” the rule, if implemented, would have resulted “in many individuals leaving the workforce entirely, accelerating a trend that has devastated our economic recovery from the pandemic.”

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