Though cases challenging private employer vaccine mandates are continuing to rage across the country and so far have typically resulted in rulings favorable to employers, a decision from a Fifth Circuit panel may signal some change in the tides. In a split forum unpublished decision, the Fifth Circuit reversed a district ruling denying a preliminary injunction against an airline’s mandatory vaccination program. Though the ruling could signal a turn in the tide against employers’ freedom to mandate vaccinations, the court has stressed that the decision, in this case, is limited solely to the facts and parties before it now.

The plaintiffs, in this case, are employees of an airline who had requested exemptions to the employer’s vaccine mandate for medical or religious reasons. However, the employer’s only exemption was to place employees on unpaid indefinite leave. As a result, the plaintiffs filed a lawsuit against the employer alleging violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

The employer did change its policies after the lawsuit was filed to allow some positions that would not interact with the public. Also, obeying certain safety protocols, including social distancing and wearing face coverings, and allowing certain employees to work remotely, but ultimately the other positions were still allowed only unpaid leave.

The plaintiffs requested a preliminary injunction to prevent the vaccine mandate from being carried out pending the outcome of litigation; however, the district court denied the request finding that the plaintiffs had failed to establish a likelihood of irreparable harm should the employer’s program be allowed to continue. This is part of the four-part test that is applied when a party seeks a preliminary injunction.

The plaintiffs appealed this decision, and the Fifth Circuit reversed the lower court’s ruling with limitations. The first limitation is that the decision only applies to plaintiffs bringing claims of discrimination on the basis of religion under Title VII and who was placed on unpaid leave. The majority found that these employees were subject to coercion on the basis of their beliefs which is inherently harmful and cannot be remedied.

The second limitation is that the court’s opinion only determined that the plaintiffs had met one element of the four-part test, that there is a substantial likelihood of irreparable harm. The majority opinion did not address the remaining three.

Though the court opinion states that it is only applicable to this case, it certainly warrants a closer examination. This suggests that employer-mandated vaccination policies that only allow unpaid leave as accommodation may not be enforceable.

Find how employers without vaccine mandates are using alternative safety measures: Alternative Safety Options For Employers Without Covid-19 Vaccine Mandates.