Vaccination Mandate - Q&A
Updated October 8, 2021
This is a publication by AMFA National. It is intended to provide general educational information about recent vaccine mandate policies at carriers where AMFA represents employees, or to provide information about AMFA’s response to those policies. This document is not legal advice.
Airlines like Southwest or Alaska who have contracts with the federal government are required by a recent presidential executive order to implement a program of employee vaccination. So far, no court has intervened to stop this order. Even before the order, no court has upheld a general right to be free from employer-required vaccines.
Existing legal precedent supports the government’s authority to impose mandatory vaccination in response to an epidemic. Currently, there is no right to work free from vaccines – outside of the right to seek a “reasonable accommodation” related to religion and disability.
The United Airlines lawsuit concerns the scope of reasonable accommodations for religious and disability-based objectors, not the legality of the mandate; the mandate is going forward. The pilots union at Southwest has said they will sue Southwest. To the extent the pilot litigation concerns SWA’s failure to bargaining concerning the scope of the reasonable accommodations, AMFA Legal believes it is likely to be dismissed possibly with an order that the dispute must be resolved through the grievance and arbitration process. AMFA Legal is closely monitoring this case. Moreover, Southwest has agreed to commence discussions with AMFA concerning reasonable accommodations for religious/disability objectors and related matters.
AMFA has responded in three ways:
One, AMFA National has taken a position that vaccines should be optional but if required that then all carriers should follow the reasonable accommodations for religion and disability-based recognized in federal law.
Two, AMFA has demanded that both Alaska/Horizon and Southwest bargain over the impact of required vaccines. The carriers have recently agreed to commence such discussions.
Three, AMFA will provide education to those who seek a reasonable accommodation and more importantly stands ready to use the grievance/arbitration process, or any other process agreed to with the carriers, in order to uphold the rights of those who seek legitimate accommodations.
There are two federally recognized bases for seeking a reasonable accommodation that are relevant: religious and medically-related disability.
Under federal law that is not enough. You have to establish you are eligible for a reasonable accommodation recognized by law.
That may be enough as long as you hold a sincere religious belief, practice, or observance, but the carriers have the right to ask somewhat intrusive questions in order to investigate the sincerity of your religious beliefs.
It is a broad one that includes moral or ethical beliefs as to what is right and wrong, that are sincerely held with the strength of traditional religious views. Sincerity is the key. As a general rule, the employer may not question the validity of your beliefs, i.e., whether you adhere to a “correct” religious doctrine.
If you apply it is your burden to prove to the carrier that you have a sincere religious belief and that it conflicts with the carrier’s policy. So you should be prepared to substantiate both the sincerity of your belief and the nature of the conflict with company’s vaccination policy.
Very personal ones. The carriers have the legal right to investigate the sincerity of your belief (but not the validity of the belief itself), and whether there is a conflict with its policy. If the basis for your accommodation request is simply political, philosophical, or just personal, it will almost surely be denied. In papers filed with the federal court, United Airlines has disclosed that it has approved approximately 82 percent of religious applications for reasonable accommodation.
Under federal law even an employee who qualifies for a religious accommodation may still have to get vaccinated, in order to retain his/her employment, if accommodating that belief would impose an “undue hardship” on the operation of the employer’s business.
With respect to a request for religious accommodation, it is anything more than minimal cost or burden on the employer. Considerations could 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.
Although some courts have held that an employer should discuss the accommodation with the employee, the employer has substantial discretion and, as discussed above, may reject any proposed accommodation that is more than minimally burdensome
At United, the airline has advised even those “customer-facing” employees (pilots, flight attendants, customer service) successfully asserting a religious objection to vaccination that the provided “reasonable accommodation” will consist of unpaid leave. With respect to non-customer-facing operations employees (maintenance and ramp) United has announced its intention to develop a program of accommodating legitimate religious objections by a combination of masking and periodic COVID-19 testing.
That is not entirely clear at this time. AMFA has demanded, and secured, discussions with the carrier for the purpose of identifying accommodations that will safeguard the employment of objectors.
It is possible that individuals for whom a vaccine is contra-indicated due to a disability related to medical issues could qualify for a reasonable accommodation.
Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine or an immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.
Those reasons are general ones, not unique to yourself, so they would almost surely fail.
You will have to offer evidence of your own qualifying disability.
By claiming the right to that accommodation, you will have to disclose any relevant medical information to the relevant decision-maker. However, the employer must otherwise maintain the confidentiality of this information.
If the company demonstrates that exempting you would impose a substantial burden on its operations, including by posing a “direct threat” to the health or safety of your or others in the workplace, it can still require you to get vaccinated.
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.
You will risk losing your job and your career.
You may or may not get your job back. In any event, we consider the overturning of the vaccine mandate to be unlikely.
At Southwest until November 24, 2021, and at Alaska and Horizon until November 24, 2021, but doing either option cannot be done at the last moment so you should make your own decision now and act on it without delay.