While the issue of whether private employers can legally enforce vaccine mandates among their workforce continues to be challenged across the country, a split panel in the Fifth Circuit is the first appellate court to signal certain private employer mandates could be vulnerable. On February 17, 2022, the Fifth Circuit issued an unpublished 2-to-1 panel decision in Sambrano v. United Airlines. The opinion, which is of limited precedential value, reverses the district court’s denial of a preliminary injunction against the airline’s mandatory vaccine program. In reversing the district court, the Fifth Circuit concluded the plaintiff employees sufficiently demonstrated they would suffer irreparable harm if the airline enforced its vaccination requirement. While superficially this may seem a blow to employer-backed vaccine programs, the majority opinion stresses that the decision is strictly limited to the parties, facts, and legal test before it.

The plaintiffs in Sambrano are airline employees who requested medical or religious accommodations exempting them from the employer’s vaccine program that required employees be vaccinated or separated from their employment. Those who received exemptions would be placed as an accommodation on indefinite, unpaid leave. The plaintiffs challenged the vaccine program as unlawful employment discrimination that violated of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

After plaintiffs filed the lawsuit, the airline changed its vaccination program, allowing certain employees in non-customer-facing roles the accommodation of working pursuant to a masking and testing protocol and permitting certain customer service representatives to transfer to remote positions. Customer-facing employees, including pilots, flight attendants, and most customer service agents, continued to face the choice of vaccination or indefinite, unpaid leave.

The plaintiffs asked the district court to preliminarily enjoin the vaccine program during the pendency of the litigation. After a hearing, the district court denied the plaintiffs’ request, holding that the plaintiffs could not establish a substantial likelihood that they would suffer irreparable injury if the vaccine program continued to operate against them, the second element of the four-part legal test applied when parties seek a preliminary injunction. The plaintiffs appealed the district court’s decision to the Fifth Circuit.

The Fifth Circuit reversed, but in so doing stressed that its decision was limited in two ways. First, the reversal applies only to those plaintiffs who brought Title VII religious discrimination claims and remained on unpaid leave, and not to those plaintiffs who received other accommodations, such as change of position or masking and testing accommodations. The Fifth Circuit found that those employees who remained on unpaid leave demonstrated they “are being subjected to ongoing coercion based on their religious beliefs” that “is harmful in and of itself and cannot be remedied after the fact.”

Second, the Fifth Circuit’s opinion addressed only one element of a four-part legal test—whether there is substantial threat of irreparable injury. The remaining elements not addressed by the majority are:

1. whether the plaintiffs demonstrated a substantial likelihood of success on the merits;
2. whether the plaintiffs demonstrated that the threatened injury to them outweighs the injury to their employer; and
3. whether the plaintiffs demonstrated that granting the preliminary injunction will not disserve the public interest.

In sending this matter back to the district court, the Fifth Circuit did not actually enjoin the company’s vaccination program.  Rather, the appellate court remanded to the district court for it to address those three remaining factors. 

In a spirited dissent, Circuit Judge Jerry E. Smith argued the district court’s “cogent and compelling” order denying the preliminary injunction should be upheld. According to the dissent, Title VII does not permit the court to enter a preliminary injunction in the first place. But even if it did, the dissent stressed that the “impossible choice” of vaccination or unemployment identified in the majority opinion does not constitute an irreparable injury as those words have been previously defined in case precedent, because employees who unlawfully lose income can be compensated by way of money damages.

The dissent further provided additional grounds why the district court’s opinion should be affirmed: the plaintiffs failed to exhaust their administrative remedies with the EEOC prior to filing their lawsuit and they also failed to establish any of the three remaining elements of the preliminary injunction test.

For employers with vaccine programs that place employees claiming religious exemptions on unpaid leave with no other form of accommodation, the opinion in Sambrano warrants a deeper examination because it suggests those programs might not be enforceable. For other employer-backed vaccination programs, employers should continue to exercise caution and consult with legal counsel as appropriate.