Employee Survival Guide® - "Oh, The Humanity!" The Human Cost of Vaccine Mandates

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where we tell you what your employer does not want you to know about and more. On today's edition of the podcast, we're going to talk about the following. Oh, the humanity, the human costs of the vaccine mandates. On witnessing the dramatic footage of the tragic crash of the Hindenburg in 1937, radio broadcaster Herbert Morrison famously exclaimed, Oh, humanity! The phrase has become a stock comment for any situation which is disastrous and impactful to human beings. Some observers of the legal conflicts surrounding the employer's COVID-19 vaccine mandates might well find occasion to further phrase here.

Starting point is 00:00:45 Last month, we published an article titled, Take This Vaccine and Shove It. Should Employers Get to Decide What Their Employees Believe? The article identified a trend in contemporary employment law where many employers are neglecting to follow clear legal guidance which suggests that where an employee seeks religious exemption from the COVID-19 mandate, their request for religious accommodation should be approved with little scrutiny, barring some specifically articulated undue hardship for the employer. In the above-referenced article, we cite a recent COVID-19 vaccine mandate issued by United Airlines, which included a requirement that any employees who requested either a medical or religious accommodation to be exempt from the vaccine would be placed on an unpaid leave of pending resolution of the accommodation.

Starting point is 00:01:31 Our contention last month was that this sort of policy in and of itself is a form of retaliation, an unlawful denial of the employee's right to request and to receive religious accommodation. On Tuesday, October 12, 2021, in Texas, a United States federal judge ordered a temporary injunction prohibiting United from placing its workers who requested exemptions on unpaid leave. While the court's order was temporary and may be lifted in subsequent hearings, the ruling raises an interesting issue. Injunctions are intended to prevent irreparable harm. Parties seeking an injunction, and in this case, six United Workers who had filed for exemptions and were going to be placed on

Starting point is 00:02:10 unpaid leave, are required to show the court that if the injunction is not granted, that permanent and irreparable harm would occur. As an attorney who has litigated a number of temporary and permanent injunctions, this is not an easy standard to meet. The party seeking the injunction must convince the court that the harm likely to occur will be of a type and to such an extent that money damages cannot repair the harm. In the case before Judge Pittman, while being placed on unpaid leave is certainly a hardship for any working person, which type of harm can presumably be remedied by an award of back pay with interest? In other words, it can be fixed with money at a later time. More on this later. So if it's not the lack of pay that will cause irreparable harm to the suspended employees, what type of harm

Starting point is 00:02:55 might they incur which is irremediable or lack of mediation by money damages? Perhaps the most irreparable harm might be that the employees could be compelled by the extreme hardship of being indefinitely denied their livelihood to get the vaccine against their will. This type of harm is both serious and irreparable. How can one be compensated with money for being forced by economic necessity to violate one's closely held beliefs about God and morality? It is difficult not to believe that the purpose of placing employees on unpaid leave would be to force as many employees as possible to give up their request for accommodation and just get vaccinated. That's the whole point of a mandate,

Starting point is 00:03:37 right? If the company was really concerned about the employee's welfare, why not place them on a paid administrative leave so there is no pressure to compromise their beliefs? That is the correct method of doing that. In this case, United did not do that. For those seeking medical exemptions, their health and wellness may be at risk if they are forced to take the vaccine. What percentage of risk of suffering a life-threatening blood clot from a vaccine to which one is vulnerable will be large enough to suspension of one's paycheck could somehow be repaired with money at a later time is also fallacious. The back pay will not compensate an entire family thrust into existential terror at the prospect of being unable to pay mortgages, rent, health insurance, co-pays, or to buy needed medicine, not to mention

Starting point is 00:04:30 food. People need that too. After a family stripped of its income has been forced into a default with creditors and credit is impaired or they go into foreclosure, how will back pay help them repair that damage? As an experienced employment lawyer, I can tell you they would never recover enough back pay to repair that damage. The attorneys for the six United Workers argued that the unpaid leave was not an accommodation, but rather an adverse employment action. They were right. The idea that an unpaid leave could be anything but an irreparable disaster for a working family is a proposition about which one almost feels absurd arguing. From the employer's perspective, the alternatives may seem equally

Starting point is 00:05:11 risky. Continuing to employ persons whom they know are at significant risk of contracting and transmitting the disease in a public-facing industry carries its own liabilities far beyond what might occur for individual employees. Failure to adequately protect the customers from COVID-19 could result in significant liability to the company. Costs associated with increased testing, personal protective gear, and operational concerns around distancing is costly to employers. Paying workers to stay at home if they assert an exemption is also costly and may be an invitation to mass labor shortages in their company if employees try to take unfair advantage of a liberal paid leave policy, which many companies have these days. There's no set invitation to mass labor shortages in their company if employees try to take unfair advantage

Starting point is 00:05:45 of a liberal paid leave policy, which many companies have these days. There's no set time frame on the paid leave of absence they can take. While the temporary injunction is just a blip on the radar screen of the United case, it raises some issues employers and employees should consider. The core issue for me is, are the employees requesting exemptions being considered a means to an end or is an end in of themselves? If they are a means to an end, then placing them on an indefinite unpaid leave and forcing as many as possible to get a vaccine they object to on religious grounds is a reasonable solution. If, however, they are an end in of themselves, they must be treated as human beings and are entitled to individual dignity, consideration, and respect. Concern for their physical and mental well-being is paramount. If United had asked this question first, then placing its employees on unpaid leave because they requested an accommodation provided by law would be out of the question.

Starting point is 00:06:45 law would be out of the question. Since working in our society is not optional but mandatory, those who work should have legal protections to ensure their livelihood cannot be suspended without a court order. Instead of the six United Workers being obligated to hire lawyers to get a judge to temporarily block the suspension of their paychecks without cause, the employer should have to go to court and convince a judge that there is an urgent need to suspend the employee's pay. That would result in an irreparable harm greater than that imposed on the employees before they were permitted to suspend anyone without pay. While cases like the United case discussed here are going to play out in courtrooms around the nation, employers, employees, and judges would do well to first focus on the human aspect of these conflicts. There is no remedy at law

Starting point is 00:07:23 for a society that disregards the humanity of its members, let's all permanently enjoin that line of thinking first. If you feel you're being mistreated at work, please contact Cary & Associates PC on the web and have a great week.

Employee Survival Guide® - "Oh, The Humanity!" The Human Cost of Vaccine Mandates

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