Jane Waterman-Joyce

As anticipation grows for OSHA’s release of a COVID-19 vaccination mandate for larger employers, the United States District Court for the District of Colorado rejected an unvaccinated United Airlines employee’s attempt to prevent her employer from placing her on unpaid leave as an accommodation for her religious objection to United’s vaccination mandate. Barrington v. United Airlines, Inc.

Plaintiff Barrington is a ramp supervisor for United Airlines. She applied for, and received, a religious exemption to United’s policy that all US-based employees who enter its facilities be vaccinated against COVID-19. As part of her exemption, United informed Barrington that, until United could install COVID-19 testing protocols at her location, she would be on unpaid leave. She then alleged discrimination and retaliation in violation of both Title VII and the Colorado Anti-Discrimination Act, or CADA, and asked for a preliminary injunction to prevent United from placing her on unpaid leave.

Evaluating Barrington’s likelihood of success on the merits, the court found that unpaid leave pending the creation of safety and testing protocols was likely to be a reasonable accommodation, as an employee is not entitled to an accommodation of their choosing, but rather, one that is reasonable and does not put undue burden on the employer.

Moreover, the plaintiff could not show irreparable harm if the injunction were denied. Plaintiff alleged that without the injunction, she would suffer emotional distress and financial consequences from being put on unpaid leave. However, under Tenth Circuit law, simple economic loss does not qualify as irreparable harm and cannot be the basis for a preliminary injunction.

The court also considered whether the harm to the employee outweighed the harm to the employer if the injunction was granted. Here, the harm to the employer was greater because United would have had to alter its strategy for addressing the health risks to its employees and customers due to the COVID-19 pandemic, while the employee’s harm was mostly speculative economic damage.

Finally, the court considered whether the injunction would harm the public interest. Here, the court emphasized that, regardless of personal belief about COVID-19, ending the pandemic is in the best interest of the public. The court also relied on the CDC’s consistent messaging that vaccines can reduce the risk of spreading COVID-19, explaining, “The Court simply cannot find that enforcement of a policy that protects other employees and conforms to the guidance of the CDC is not in the public interest.”

The Barrington case is far from over, but it provides some salient tips for employers with vaccine mandates facing demands for religious accommodations. First, an employer should carefully think through the document and be ready to persuasively demonstrate that its proposed accommodation is a reasonable way to ensure worker health and safety, as well as reducing unreasonable expense. Second, it is helpful if the employer’s mandate complies with CDC or similar governmental guidance, as that was a point of emphasis in the Barrington case. Keep in mind that this is an emerging and complicated area of law, so the best policy for employers may include consulting with an employment law attorney to ensure all policies and proposed accommodations comply with federal guidance.