By Kaitlynn Milvert
After the Occupational Safety and Health Administration (OSHA) COVID-19 vaccine mandate for large employers was withdrawn last month, many pronounced private employers to be “on their own” to make decisions about vaccine requirements for their employees.
Until one outlier Fifth Circuit decision last week, federal courts have largely agreed. In lawsuits challenging private employers’ COVID-19 vaccine mandates, federal district courts have routinely denied requests for preliminary injunctions to halt private employers’ vaccination policies from taking effect.
Private employers’ discretion to establish vaccine requirements as a condition of employment is generally well-accepted. Many examples exist of large private employers who have adopted COVID-19 vaccine requirements for their employees, including Tyson Foods and United Airlines, among others.
Yet, legal challenges to these private employers’ vaccination requirements have proliferated in the federal courts. These lawsuits have relied primarily on Title VII of the Civil Rights Act, arguing that employers’ denial of broad religious exemptions constitutes religious discrimination.
Employees suing to challenge private employers’ vaccine requirements have sought preliminary injunctions that would stop employers from enforcing their policies or halt those that have already taken effect. Up to this point, federal courts have almost uniformly denied such injunctions.
To get a preliminary injunction, employees have to show four factors: (1) that they are likely to succeed in their claims, (2) that they face a risk of “irreparable injury,” (3) that the risk of harm associated with the injunction itself does not outweigh that risk of “irreparable injury,” and (4) that the injunction would be in the public interest.
In employment discrimination cases, established precedent has almost categorically held that unpaid leave, demotion, or even termination do not constitute “irreparable injury” because monetary damages and related remedies are available if the employee ultimately prevails in their claims.
Federal district courts ruling on challenges to private employers’ COVID-19 vaccine requirements have consistently applied this precedent in ruling on employees’ requests for preliminary injunctions.
For example, in a suit against Tyson Foods, a federal district court in Missouri stated: “This Court is unwilling to venture beyond the clear boundaries limiting the authority of the courts to order the extreme remedy of preliminary injunctive relief to invalidate the COVID-19 safety measures of a private employer.”
In a case against the J.M. Smucker Company, a federal district court in Ohio similarly reinforced that the “loss of employment” is “a loss that is fully compensable through monetary damages and therefore not irreparable” for the purposes of a preliminary injunction.
These decisions thus flesh out an emerging approach to employees’ requests for preliminary injunctions that conforms to existing principles in the employment law context.
A Fifth Circuit Outlier
In that decision, the Fifth Circuit reversed part of a Texas district court ruling that had denied a preliminary injunction to employees challenging United Airlines’ vaccine requirements. The district court had determined that the employees did not satisfy the standard for a preliminary injunction. Among other factors, the employees had not shown a risk of irreparable injury in being placed on unpaid leave.
The Fifth Circuit reversed that portion of the lower court’s decision. The appeals court instead defined “irreparable injury” in a novel way. Rather than focusing on the unpaid leave itself, the court framed the injury at issue as one of religious “coercion,” describing it as “United’s decision to coerce the plaintiffs into violating their religious convictions.” The Fifth Circuit thus sent the case back to the district court to evaluate whether the other three factors for a preliminary injunction would be met.
The Fifth Circuit decision represents a significant outlier amid a body of district court decisions that have consistently determined that unpaid leave or termination would not constitute “irreparable injury” for the purposes of a preliminary injunction.
Yet, the decision also risks laying the groundwork for future courts to rule otherwise and disrupt this consistent approach to requests to enjoin private employers’ vaccine requirements. The Fifth Circuit has had an outsized role in litigation over vaccine requirements issued by the federal government, and its intervention in this ruling on a preliminary injunction raises concerns about the role the decision could play in influencing future rulings on private employers’ vaccine policies.