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United Airlines says employees opposed to vaccine requirement lack actual disability to sue for discrimination

Chicago-based airline says none of the six plaintiffs have a disability under the Americans with Disabilities Act that "substantially limits one or more major life activities."

FORT WORTH, Texas (CN) — United Airlines pushed back in court Thursday against employees refusing to comply with a Covid-19 vaccine requirement, arguing they lack “an actual disability” to sue for reasonable accommodation protections and an immediate block to the policy.

Six employees based at Dallas-Fort Worth International Airport filed a proposed class action against the airline Tuesday in federal court, claiming United forces those who refuse the vaccines for medical or religious reasons onto unpaid leave in violation of their rights under the Americans with Disabilities Act and Title VII of the Civil Rights Act.

The workers are seeking a temporary restraining order, claiming they are left with an “impossible choice” of taking the shots at expense of their religious beliefs and health or losing their livelihoods.

The Chicago-based airline says none of the six plaintiffs can claim disability discrimination because they do not have a disability under the ADA that “substantially limits one or more major life activities” of a person. All six employees were granted exemptions before being placed on unpaid leave.

“For example, Ms. Jones asserts having ‘severe reactions to various allergens, including eggs and penicillin’ and reports once having ‘had an emergency room episode due to an allergy,’” United’s 20-page brief in opposition to plaintiff’s motion for a TRO states. “She has not connected this to impairment of any major life activities. The same is true for Mr. Turnbough’s multiple sclerosis, which according to his own testimony is in remission. His affidavit says nothing about any limitation on any major life activity. Indeed, ‘Mr. Turnbough is responsible for commanding and flying an aircraft.’”

United says its policy of keeping unvaccinated employees from customer-facing roles and unvaccinated operational employees from the workplace passes muster under the ADA because of the “direct threat” they pose to themselves and others. The airline further rejects the workers’ claims of irreparable harm of lost pay while being put on unpaid leave, arguing that federal courts have rejected that lost earnings constitute irreparable harm due to back pay, benefits and reimbursement being awarded if plaintiffs ultimately win the lawsuit.

United’s filing comes one day after it announced that approximately 97% of its workforce is vaccinated and that it will start firing unvaccinated workers who lack an exemption as soon as Sept. 28. The airline announced in August that employees who do not get vaccinated or obtain an exemption by Sept. 27 would be subject to firing. Employees that are determined to be exempt will begin their unpaid leave on Oct. 2.

The plaintiffs are represented by John Sullivan in Cedar Hill and Robert Wiegand and Melissa Swindle with Stewart Wiegand in Dallas. United is represented by Jordan Matthews with Jones Day in Chicago and Donald Munro with Jones Day in Washington, D.C.

The lawsuit comes two weeks after President Joe Biden mandated that all employers with over 100 employees must require vaccines or weekly testing. States quickly filed federal lawsuits, claiming Biden’s mandate flies in the face of federalism. Employers have since been flooded with medical and religious exemption requests, with the Los Angeles Police Department facing approximately 3,000 objections to the vaccines on religious grounds.

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