Court grounds Hawaiian Airlines employees’ vaccine mandate challenge

By Lillian Hartgrove, State Board of Education Chairman
Special to the UCBJ

In O’Hailpin et. al v. Hawaiian Airlines, Inc. a group of employees brought a putative class action that challenged Hawaiian Airlines’ practices in connection with its vaccine mandate and handling of claims for medical or religious exemptions. The employees sought a temporary restraining order and preliminary injunction against Hawaiian Airlines’ practices. Suffice it to say that the Court was not impressed.

Hawaiian Airlines set its policy up in an organized manner and gave employees very reasonable notice of its requirements. The company announced in August 2021 that effective Nov. 1, 2021 all U.S.-based employees were required to be vaccinated. Hawaiian Airlines created a policy that, among other things, created a path to request reasonable accommodation based on disability or sincerely held religious belief. In addition, employees who declined to be vaccinated would receive a 12-month unpaid leave of absence.

In considering requests for accommodation, Hawaiian Airlines viewed guest-facing employees differently than those who are not guest-facing. The company granted exemptions to many employees who were not guest-facing and could maintain social distancing and wear masks. It denied accommodations to guest-facing employees.

The plaintiffs in the case included flight personnel, a customer service agent, and a corporate trainer. Hawaiian Airlines had denied their requests for accommodation on health or religious grounds, and in some cases both.

As noted above the plaintiffs asked the Court to enter an injunction requiring Hawaiian Airlines to stop its practice of denying accommodations. To obtain an injunction the party requesting it must show that, absent the injunction, the party will suffer “irreparable harm. In general, irreparable harm is a type of harm that cannot be remedied by money damages.

The plaintiffs alleged that denying the injunction would result in various types of irreparable harm. They alleged that denial would result in a “chilling effect” on other employees who wished to seek health or religious exemptions, because they would be faced with a 12-month unpaid leave of absence in the event of denial. The Court pointed to the clear policy set by Hawaiian Airlines in advance – including its policy and practices regarding accommodation – and found the plaintiffs’ contention unpersuasive.

Plaintiffs contended that the policy forced them into a “crisis of conscience” because they had to choose between their health, or their beliefs, and their employment. The Court founds this unpersuasive as well, noting that Hawaiian Airlines did not force anyone to be vaccinated. 

Plaintiffs put forward a few other contentions, which the Court also dismissed. In short, the Court found that plaintiffs did not establish irreparable harm.

Another factor that a party seeking an injunction must show is that the party has a reasonable likelihood of success on the merits of its claim. The plaintiffs in the Hawaiian Airline case contended that their requests for accommodation were reasonable, thereby putting the burden on Hawaiian Airlines to show that granting the requests would create an undue burden on the company.

The Court addressed the plaintiffs’ contention with respect to both religion and disability. On this subject the company noted the following burdens in connection with setting out its undue hardship defense: 

  1. Unvaccinated employees posed an increased risk to other employees and passengers; 
  2. Testing would create a substantial administrative burden, particularly given the current shortage of tests; 
  3. Administrative difficulties of revising schedules to reincorporate unvaccinated persons; 
  4. Difficulties with pending union grievances; and 
  5. The problems associated with scheduling unvaccinated flight crew on international flights.

The Court found that reasons (1), (2) and (5) were particularly impactful. Accordingly, the Court held that plaintiffs had not met their burden of establishing a likelihood of success on the merits.

This case is one in a growing trend that supports employers’ ability to establish and enforce a vaccine mandate. This is particularly true where the employer sets up its policy in advance, communicates it well, and includes appropriate paths for seeking and obtaining accommodation for health and religious reasons. Notably, Hawaiian Airlines did not summarily deny requests. It made reasonable distinctions between employees who were guest-facing and those who were not in such positions.

Of course, if Hawaiian Airlines was a Tennessee company, it would have had to make some changes to its policy and practice. Tennessee and some other governments restrict the ability of employers to require, or to effectively enforce, vaccine mandates. Accordingly, employers who operate in multiple states must be aware of the rules in each of their locations.

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