The 5th U.S. Circuit Court of Appeals' 2-1 decision doesn't stop the airline from fulfilling its mandate. It states that a Texas lower court judge must temporarily block the requirement for employees while they fight United’s vaccine policy.
According to the majority opinion of Jennifer Walker Elrod, Andrew Oldham and Andrew Oldham, the decision about whether to get vaccinated is "impossible for plaintiffs who wish to remain faithful but must provide food on the table."
They claimed that the lower court judge had erred in stating that employees didn't face irreparable injury, and remanded the case to him to examine other factors, including whether the two employees will ultimately prevail in their court battle.
In a lengthy and stinging dissent, Judge Jerry E. Smith (third judge on the panel) rejected the majority's findings. Smith argued that the denial by the lower court judge of an injunction last January should be upheld.
Smith wrote that there were many reasons the plaintiffs could lose their appeal. He claimed that his fellow panel members had ruled against court precedents and laws.
He said that they were not at irreparable risk and that the federal Civil Rights Act provisions in the case allow them to sue for damages if they win.
He also stated that the employees are unlikely to win. Smith cited the following reasons. Smith stated that the religious discrimination claim against United is unfounded. United tried to accommodate religious objections to workers by offering them alternative jobs and unpaid leave.
Smith stated that even if unpaid leave was not reasonable accommodation, plaintiffs have not shown United can accommodate them without undue burden, so they are not entitled to the merits.
United Airlines stated in an email that it would continue to defend its policy. United Airlines stated that employees who do not face customers or who are unable or unwilling to take the vaccine due to religious or medical reasons will continue to comply with testing and masking requirements. According to the statement, pilots and flight attendants have the option of accepting paid positions that do not require direct contact with the public.
The case was referred to U.S. District Judge Mark Pittman in Fort Worth (Texas) on Thursday.
President George W. Bush nominated Elrod to the court; President Donald Trump named Oldham; Smith was nominated by President Ronald Reagan.