Several news outlets reported yesterday that a major airline that has already mandated employee vaccinations will begin placing employees on temporary unpaid leave if approved for a religious vaccine exemption.
According to the CNBC report, the airline informed its staff yesterday about the unpaid leave, citing the rise in COVID-19 cases. Employees denied a religious exemption will have until September 27 to get their first shot. Otherwise, the airline will fire them.
The CNBC article indicates that employees that interact with the public (e.g., pilots, flight attendants, gate agents, and airport customer service agents) can return to work “once the pandemic meaningfully recedes.” Meanwhile, the company is working on implementing testing and other measures to facilitate the return of employees in non-customer-facing positions.
So, is all of this legal?
But what about masking, social distancing, and regular COVID-tests? Wouldn’t that be reasonable too?
The social distancing part may not be possible. Notwithstanding, if there is more than one reasonable accommodation available, the employer gets to select which one to provide.
There is one well-established exception. That is, an employer fails to accommodate its employee when it transfers that employee from a position they could perform if provided with reasonable accommodations to a position they do not want. Perhaps, going from a paid job to unpaid leave isn’t that far off.
And what about employees seeking a health-related accommodation. Will they need to go on unpaid leave as well? All the articles I’ve read are silent about this. A meaningful distinction in how the company treats those with disabilities and sincerely-held beliefs may provide fodder for a religious discrimination lawsuit.
How would you handle this?
If your business mandates vaccinations, has it considered unpaid leave as the preferred accommodation for those who can’t get vaccinated for health or religious reasons? Or are you ok with masks, social distancing, and regular testing? Please email me and let me know. I’d love to hear from you.