A federal judge on Wednesday declined to order Hawaiian Airlines to halt its mandatory vaccination policy for employees, despite a request from seven current and former employees who have filed a lawsuit alleging the company violated federal law when imposing the policy.

U.S. District Court Judge Jill Otake said the plaintffs had met none of the four requirements needed to obtain the requested temporary restraining order or injunctive relief. She also granted the airlines’ request to strike from the record a declaration submitted by a purported expert for the plaintiffs, saying the declarant’s “qualifications as an expert in this subject matter are questionable.”

Otake’s order did not affect the lawsuit, which was filed by seven workers who claim the airline violated federal law by failing to accommodate their religious beliefs and medical conditions when imposing the mandate. The company requires employees to be vaccinated or take an unpaid leave of absence.

A judge rejected a request by Hawaiian employees to halt the airline’s vaccine mandate. Ludwig Laab/Civil Beat/2021

John Sullivan, an attorney for the plaintiffs, expressed disappointment.

“We are disappointed in the ruling since federal civil rights law exists to prevent employees from having to choose between their faith or health and their job,” he said in a statement. “We are also saddened by Hawaiian’s treatment of its employees – individuals who only want to continue working safely just like the employees of all the other airlines who accommodate their employees with testing.”

Although the company has said that about 95% of its workforce has been vaccinated, there are still about 270 who chose not to get the shots, the company has said.

The plaintiffs included pilots Robert Anthony Espinosa and Ronald Lum, flight attendants Riki O’Hailpin and Nina Arizumi, aircraft technician Erwin Young, management instructor Puanani Badiang, and customer service agent Sabrina Franks. Other employees may have separate claims.

The plaintffs alleged the company violated the Civil Rights Act of 1964 by, among other things, failing to engage in an interactive process regarding their requests for religious accommodations and by responding “to Plaintiffs with questions designed to deter Plaintiffs from exercising their religious beliefs.”

The suit also alleged the airline violated the Americans with Disabilities Act by refusing to offer reasonable medical accommodations to O’Hailpin, Arizumi, and Lum, who say they have disabilities that prevent them from taking the vaccine.

Trial Still Pending

With a trial to determine the merits of these claims months away and the workers on unpaid leave or terminated per Hawaiian’s policy, the plaintiffs asked Otake to step in with the TRO to stop Hawaiian from enforcing the policy.

To persuade a judge to grant a TRO before engaging in the fact-finding and analysis that go with a trial, a plaintiff generally must convince the court of four things: that the plaintiff is likely to succeed on the merits of the lawsuit at trial; that the plaintiff is likely to suffer irreparable harm without the court stepping in before the trial; that the balance of fairness to the parties supports an injunction; and that the injunction is in the public interest.

Federal courts in Hawaii additionally use a sliding scale analysis when ruling, meaning the party asking for the TRO doesn’t have to prevail on all four points.

Here, however, Otake said the plaintiffs failed on all four points. For example, Otake noted, it is well established in federal law that getting wrongly terminated does not amount to irreparable harm because the fired worker can get paid back through damage awards after a trial.

Likewise, Otake wrote, “In cases involving vaccine policies, courts have consistently found that a loss of employment is not irreparable harm.”

The judge also rejected the plaintiffs’ argument that they had suffered irreparable harm by being forced to get vaccinated “at the expense of their conscience and health, or give up their livelihood.”

Judge Dismisses Public Interest Argument

Otake noted that the plaintiff’s counsel, Texas lawyer John Sullivan, had made the same argument, unsuccessfully, in a case representing United Airlines workers.

“This argument has been rejected by other courts for good reason,” Otake wrote. “Hawaiian did not force Plaintiffs or any other employees to get vaccinated.”

Rather, the judge said, “A small percentage of employees, including Plaintiffs, elected not to receive the vaccination, and so have made a choice.”

Concerning the likelihood of success on the merits prong of the TRO analysis, Otake among other things noted the plaintiffs still have cases pending before the federal Equal Employment Opportunity Commission – an administrative remedy that normally must be exhausted before a party can bring an employment claim in court.

Finally, the judge rejected the argument that letting Hawaiian’s pilots and flight attendants work without being vaccinated was in the public interest. In fact, Otake said just the opposite.

“At this point in the pandemic, the soundness of vaccination as a tool to slow the transmission of COVID-19 and to prevent serious illness and death cannot be reasonably disputed,” Otake wrote.

“Enjoining Hawaiian from enforcing the vaccine policy would not serve the public interest, nor would (permitting) the interests of the many to be subordinated to the wishes or convenience of the few,” she added.

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