This article was originally published by the New Orleans Chapter of the Federal Bar Association in Volume 31, Issue 4 of The Advocate.
Since COVID-19 vaccines won full regulatory approval last September, workplace vaccine mandates have become standard practice for many employers around the country. Although the issue of whether private employers can legally enforce vaccine mandates continues to give rise to lawsuits in all 50 states, the substantial majority of claims challenging the enforcement of mandates have received an underwhelming reception by the courts.
The primary challenges to workplace vaccine mandates have been based in the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964, with classes of plaintiffs arguing that their medical and/or religious exemptions were improperly denied by their employers. Likely because health-based claims require the aggrieved party to identify the specific health risk posed by receiving the COVID-19 vaccine, most of the cases filed relate to the denial of religious exemptions, which require a showing that the plaintiff’s request is based on a sincerely held religious belief and will not require the employer to incur more than a de minimis expense to accommodate.
Almost uniformly, courts have denied plaintiffs’ requests for preliminary injunctions preventing their terminations from taking effect during the pendency of the litigation. Courts have based these rulings principally on established precedent that termination does not constitute an “irreparable harm,” one of the four elements necessary for issuing a preliminary injunction. The plaintiffs’ request for a preliminary injunction in Sambrano v. United Airlines faired no differently - that is, until the Sambrano plaintiffs, whose claims were based in religious accommodation, sought an injunction from the U.S. Court of Appeals for the Fifth Circuit pending their appeal of the district court’s order. Although the three-judge panel denied the plaintiffs’ motion, a dissenting opinion from Judge James C. Ho breathed new life into the case and forecasted the panel decision to come. See Sambrano v. United Airlines, 19 F.4th 839 (5th Cir. 2021).
In his dissent, Judge Ho explained that he would grant an injunction pending appeal, concluding that although termination does not typically constitute an irreparable injury warranting injunctive relief, “this case is very different.” In Judge Ho’s opinion, the employer’s vaccine mandate was forcing the plaintiffs to “choose between the two most profound obligations they will ever assume— holding true to their religious commitments and feeding and housing their children . . . the most horrifying of Hobson’s choices,” which Judge Ho concluded “is a quintessentially irreparable injury, warranting preliminary injunctive relief.”
On the merits of the appeal, a split panel of the Fifth Circuit echoed Judge Ho’s views, reversing the district court, holding that the plaintiffs’ unpaid leave was an irreparable injury, and remanding the case for the district court to consider in the first instance whether the remaining three elements of a preliminary injunction were met. See Sambrano v. United Airlines, No. 21-11159, 2022 WL 486610 (5th Cir. Feb. 17, 2022).
In reversing the district court, the panel majority first ruled that, under the facts presented in the underlying action, these plaintiffs were not required to first exhaust their administrative remedies before the EEOC and were instead permitted to proceed straight to federal court to seek injunctive relief. As the panel reasoned, “Time is of the essence in such cases, so while a plaintiff must exhaust EEOC remedies before ultimately prevailing in a Title VII action, she need not do so to simply request that the status quo be preserved until the EEOC reaches a decision.”
Next, adopting Judge Ho’s position in his dissenting opinion on the plaintiffs’ motion for injunctive relief, the majority ruled that an employee’s choice between receiving a vaccine over their religious objections or effectively losing their job presented an “irreparable harm,” and “United’s decision to coerce the plaintiffs into violating their religious convictions . . . is irreparable and supports a preliminary injunction.”
In a lengthy and fiery dissent, Judge Jerry Smith stated, “In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop.” Over the course of 53 pages, Judge Smith offered several reasons for his opinion that the district court’s bases for denying the plaintiffs’ motion for preliminary injunction should have been affirmed in full. Judge Smith later acknowledged in a footnote that, although unlikely in the case of an unpublished opinion, a rehearing en banc is possible under Fifth Circuit rules, and he urged his colleagues to take up the matter: “[B]y today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.”
Although United Airlines initially moved for a rehearing en banc, it has since taken the position that a change in its policy has mooted the plaintiffs’ appeal and moved the Fifth Circuit to vacate both the district court’s order denying a preliminary injunction and the panel opinion reversing that denial.
The Sambrano majority stressed that its unpublished opinion was strictly limited to the parties, facts, and legal test before it. However, as Judge Smith suggested in his dissent, the panel’s decision likely has implications well beyond Sambrano and vaccine mandates. Notably, the Fifth Circuit is considered a “permissive” court, in that it does not restrict citation to its unpublished opinions. Notwithstanding its lack of binding authority, the opinion’s persuasive value indicates a potential sea change for both Title VII exhaustion requirements and plaintiffs seeking religious exemptions for all manner of employment policies.
These holdings—whether a plaintiff must first exhaust her administrative remedies with the EEOC before seeking (and being granted) a preliminary injunction, and whether objections to an employment policy on religious grounds presents an irreparable harm—will likely have significant consequences on a wide range of employment-related claims. Whether the Fifth Circuit decides to rehear the case en banc or to vacate the district court’s ruling, the panel’s opinion, or both, remains to be seen. But employment lawyers and their clients should keep a close watch on Sambrano, as it may have a significant impact on their practice and employment policies moving forward.