A recent announcement from United Airlines stated that employees who have been exempted from its vaccine mandate will be placed on unpaid leave. This novel move has many asking, “Is that legal?”
By now, it has been established that an employer may legally mandate the COVID-19 vaccine for its workers. The U.S. Department of Justice issued an opinion letter, the EEOC has issued guidance, and court cases affirming mandates have already started to make their way through the judicial system.
The law also provides two exemptions to an employer vaccine mandate: a medical exception under the Americans with Disabilities Act (ADA), and a religious exception under Title VII of the Civil Rights Act.
Although these exemptions exist, it is important for both employers and employees to understand that they are not final. An employee may meet the initial criteria for an exemption, but that does not necessarily mean the employee can continue at work mandate-free. Employers must determine whether they can provide such employees with a reasonable accommodation in order to ensure their safety and the safety of their other employees. What constitutes a reasonable accommodation will depend on a variety of factors, including the industry, job duties of the individual, and what alternatives are possible.
In certain circumstances, a reasonable accommodation may include unpaid leave. United Airlines is a large employer with workers in a variety of roles. Accordingly, their policy concerning vaccine-exempt employees varies as well. Those employees who are ground staff and customer-facing, such as gate agents, flight attendants, and pilots, and who are unwilling or unable to get the COVID-19 vaccine, will be accommodated by being placed on unpaid leave until the pandemic “meaningfully recedes.” These workers are exposed to a variety of individuals from all around the world, often on a daily basis. With the threat of variants and differing vaccinations rates, it is understandable that it would be difficult for United to find an accommodation for these unvaccinated employees that would allow them to fully function in their roles.
United also announced that it would place other employees, such as baggage handlers and mechanics, on unpaid leave pending implementation of an in-house means of testing employees. Given that these employees are not as exposed to the public, providing weekly testing appears to be a reasonable accommodation for those unwilling or unable to be vaccinated. United noted in its announcement that it had not yet determined accommodations for office staff. Those workers are most likely to be able to work remotely, providing a relatively easy accommodation option.
United’s take on providing a reasonable accommodation is a great example of the fact-specific approach employers must take in order to balance the safety of their work environment with the rights of employees. Employers should take a look at their own mandate and exemption policies and seek the counsel of qualified attorneys to ensure compliance with the law.