The Volokh Conspiracy

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Is The Threat of Termination For Failure To Get Vaccinated Irreparable Harm?

Justice Gorsuch said yes. Justice Barrett may have thought no.


In John Does 1-3 v. Mills, three Justices would have enjoined Maine's vaccine mandate. Justice Gorsuch wrote that the workers faced an irreparable harm: receive the vaccine, or be terminated from their employment. Justice Barrett's concurrence did not even mention the threat of irreparable harm. After my post, several colleagues wrote that Barrett may not have mentioned that factor because it was obviously not satisfied. Specifically, if a person is wrongfully terminated, a court can later order reinstatement, backpay, and restoration of other benefits (such as seniority). The worker can be made whole. I had planned to revisit that issue, after giving it some more thought.

On November 8, a federal district court in Texas declined to enjoin United Airline's vaccine mandate. (As chance would have it, I write this post aboard a United flight). The court found that the threat of being placed on unpaid leave was not irreparable harm. The judge advanced the argument that may have undergirded Justice Barrett's dissent. No one was actually forced to receive the vaccine; rather, employees could choose to comply with their religious scruples, but forgo their livelihood.

It is undisputed that United exempted Plaintiffs from the vaccine mandate. Plaintiffs, therefore, have not been denied the freedom to exercise their religious beliefs. Indeed, by declining to receive the vaccination, they have acted in accordance with their religious beliefs. So, again, Plaintiffs' grievances lie with United's response to their decision.

The court acknowledged that there are many collateral consequences to losing benefits, that cannot be restored through court order, such as health insurance and medical treatments:

Plaintiffs also claim that the secondary effects of lost income—loss of housing, health care, possible loss of educational and employment opportunities, and psychological harm—are irreparable. Pls.' PI Br. at 17–18. Mr. Castillo testified that he lives paycheck-to-paycheck and that he will face homeless if United places him on unpaid leave. PI Hr'g Tr. Vol. II, 90:4–10. Ms. Hamilton testified that, if placed on unpaid leave, she would lose the income and medical insurance that currently fund her husband's cancer treatment. See id. at 48:5–50:2. Similarly, Ms. Jonas testified that she will be unable to provide necessary healthcare for her disabled husband without the income and medical insurance provided by her employment with United. Pls.' TRO App'x at 26, ECF No. 7. Mr. Sambrano argues that, if placed on unpaid leave, he will need to evaluate how to pay for his child's college education and whether his family will need to consider alternative education options. Id. 

But these costs, the court found, still were not irreparable:

The Court is not insensitive to Plaintiffs' plight. A loss of income, even temporary, can quickly ripple out to touch nearly every aspect of peoples' lives, and the lives of their families and dependents. But the Court's analysis must be guided by the law, not by its sympathy.

Fast-forward to Friday evening. The Fifth Circuit enjoined the OSHA vaccine mandate. And the panel found, with very little difficulty, that the employees faced an irreparable harm--even though the mandate operates on employers:

It is clear that a denial of the petitioners' proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms "for even minimal periods of time . . . unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").

After some reflection, I don't think the vaccine mandate cases can be viewed in the same light as traditional employment dispute. In a conventional case, an employee allegedly violates some company policy, and is terminated. At that point, the employee claims that the justification for termination was pretextual, or was retaliation for protected activity. And, if, after lengthy litigation the employee is proven correct, the court can order reinstatement, backpay, restoration of benefits, etc. Or in another conventional case, a worker violates some government regulation, and is terminated. At that point, the employee claims that the regulation itself is ultra vires, and thus the termination was unjustified. Once again, after lengthy litigation, the employee could be made whole.

The vaccine cases seem different. Generally, worker are terminated for failing to comply with some rule at the workplace. Or, their conduct outside the workplace spilled over to the workplace–for example an employee came to the office drunk. But the vaccine mandate cases requires workers to receive a shot that, according to their claims, inflicts an irreparable injury to their conscience. The injection cannot be uninjected.

The plaintiffs in the United case raised this argument:

Plaintiffs first argue that "United has put its religious and disabled workers in an impossible position—take the COVID-19 vaccine, at the expense of their religious beliefs [or face indefinite] unpaid leave." Pls.' PI Br. at 16, ECF No. 37. Because the vaccine cannot be removed from their bodies, an individual who chooses to get the shot cannot undo that choice.8 Plaintiffs argue that acquiescing to United and getting the vaccine in violation of their beliefs will cause irreparable harm.

However, the district court rejected the argument:

This argument, however, conflates the potential harm arising from United's accommodation policy with the personal difficulty of deciding to decline the vaccine. United exempted Plaintiffs from the vaccine mandate; Plaintiffs were not required to violate their religious beliefs. United's employees claimed they faced an impossible choice: get the vaccine or endure unpaid leave. But they have chosen the chose the latter. Their dispute thus centers on United's response to their choice.

This position may work in the context of a private employer, enforcing a private policy. But I do not think it works for a public employer, or alternatively, a private employer bound by a governmental mandate.

The sort of choice faced by these workers resembles that faced by Adeil Sherbert: work on Saturday and receive unemployment benefits, or rest on the Sabbath and forgo unemployment benefits. Under a RFRA regime, the former choice would yield irreparable harm. Again, I am not sure this argument governs disputes with the enforcement of private rules in light of longstanding precedent.

In this novel context, perhaps a better interim remedy would be to put the workers on paid leave, with all relevant benefits accruing until the litigation completes. Or, let the workers engage in 100% telework, such that they are excused from the mandate. The workers would not be in the workplace, and thus would not risk spreading COVID. If, at the end of the case, the workers lose, the employer could attempt to claw back the backpay. Such collections may be difficult, if not impossible. But when dealing with religious freedom, the courts can err on the side of conscience, while still avoiding potential harms to other workers.