A federal judge is expected to decide this week whether to issue an order temporarily stopping Hawaiian Airlines from enforcing a Covid-19 vaccine mandate on seven plaintiffs who have sued the company for allegedly violating federal law by imposing the vaccine requirement.

Specifically, the employees – who include pilots, flight attendants and others – assert the company violated federal law by failing to accommodate their religious beliefs and medical conditions.

The complaint asks the court to order Hawaiian to stop terminating or placing on unpaid leave “any employee who has a religious or medical basis for seeking an accommodation and does not wish to be terminated, placed on unpaid leave, or forced into retirement from the company.”

Hawaiian Airlines aircraft parked at the Daniel K Inouye International Airport, interisland terminal side of the airport during COVID-19 pandemic. June 11, 2020
During the height of the pandemic, much of Hawaiian Airlines’ fleet was simply parked, with few passengers to carry. Cory Lum/Civil Beat/2020

Given that it could take months for the court to sort out whether the company violated the law, the plaintiffs asked U.S. District Court Judge Jill Otake to step in now with a temporary restraining order. Following an hourlong hearing where both sides made arguments for and against the order, Otake promised to issue a decision no later than Thursday.

While Otake gave no clear indication of how she would rule, the questions she posed to the lawyers during oral arguments provided insight into the issues the judge found most relevant.

The plaintiffs in the lawsuit are 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.

The seven plaintiffs allege 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.”

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

To persuade a judge to issue a restraining order before 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.

Judge Questions ‘Irreparable Harm’

When questioning the plaintiffs’ attorney, Texas lawyer John Sullivan, Otake first got the lawyer to acknowledge that no other court had granted a TRO against a private employer’s vaccine mandate, although Sullivan said there have been only “a handful” of such cases.

Still most of Otake’s questions to Sullivan focused on the “irreparable harm” prong of the analysis. The thrust of the judge’s questions focused on the principle that suffering financial harm, even getting wrongly fired, generally isn’t considered irreparable harm because a court could award back pay to the wrongly fired employee after a trial.

But Sullivan pointed to case law from the 9th Circuit that he argued suggested otherwise. For instance, he said, plaintiffs suffered irreparable psychological harm when having to choose between taking the vaccine and keeping their jobs.

Nonetheless, Otake expressed skepticism, saying at one point that “there seems to be some disconnect here as to why a TRO is needed” instead of allowing the matter to proceed to trial.

Meanwhile, in questioning Hawaiian’s lawyer, John Rhee, Otake focused on whether the carrier had engaged in an interactive process with employees, as required by the federal Americans with Disabilities Act, when trying to determine how to accommodate the employees.

At one point Rhee acknowledged the airline has received more than 500 requests for exemptions based on religious grounds and had granted only six, while the airline has granted just four out of 71 requests for medical exemptions, Rhee said.

Rhee conceded that the airline had not engaged in conversations with every employee to find a reasonable accommodation. But he said any accommodation would require regular testing of employees, which would pose an unreasonable burden on Hawaiian, given the complexities of staffing aircraft and support workers.

But the judge seemed unconvinced.

“If you’re conceding there was not a back and forth with everyone,” she asked, “how would you know there was no reasonable accommodation” available?

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