Is The Threat of Termination For Failure To Get Vaccinated Irreparable Harm?
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 te
Article from Reason.com