On February 2, 2022, Judge Otake issued Hawai’i’s first order regarding COVID-19 vaccine policies in the workplace. Judge Otake denied a petition for an injunction from a class of Hawai’ian Airlines employees who had been or were facing termination after Hawai’ian denied their religious and medical exemptions. Hawai’ian approved some exemptions for non-customer facing employees able to socially distance and wear masks, but the plaintiffs in this case were customer-facing. The religious exemptions mentioned in the decision are consistent with the same religious exemptions many employers have been receiving.
Judge Otake’s decision did not dispose of the lawsuit, but it indicates judicial support may be likely for Hawai’i employers who have or may be considering vaccination policies in response to the pandemic. Judge Otake determined that it was not clear the Hawai’ian plaintiffs could establish a prima facie case for religious or disability discrimination or retaliation. Even if they could, Hawai’ian’s argument that the increased risk of unvaccinated employees to other employees and passengers in close quarters, the administrative burden of testing especially with testing shortages, and the difficulty of scheduling unvaccinated crew on international flights would create an undue hardship on the company was compelling and persuasive. Further, the public interest element weighed heavily in favor of denying the injunction since Hawai’ian’s policy was implemented to safeguard the workforce and the public, and to curb the spread of COVID-19.
Judge Otake cited to Beckerich v. St. Elizabeth, __ F.Supp.3d __ (2021), an early federal decision that came out of conservative Kentucky denying an injunction against a hospital’s mandatory COVID-19. In Beckerich, the Court stated:
“If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.”
Id. at *9.
While Judge Otake’s decision was not as strongly worded as Beckerich, it lends strong support to employer’s seeking to assert vaccine policies in the workplace.
Employers should continue to review COVID-19 policies and consider exemptions to any mandatory vaccine policy on an individual basis. Goodsill labor and employment attorneys are available to assist:
John S. Mackey, Esq. [email protected]
Notice: We are providing this Goodsill Alert as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each specific situation. Receipt of the Goodsill Alert does not establish an attorney-client relationship.