United Airlines Covid Vax Class Action Tested in Fifth Circuit

United Airlines Inc. wants a federal appeals court to throw out what it called an “unprecedented” order certifying an employee class action challenging the company’s Covid-19 vaccination policy.

The airline will send Noel Francisco, a Jones Day attorney who served as US solicitor general during the first Trump administration, to argue before the US Court of Appeals for the Fifth Circuit on Thursday that the certification order conflicts with circuit precedent restricting class claims seeking damages for violations of Title VII of the 1964 Civil Rights Act, among other issues.

The company is trying to avoid class litigation against as many as 1,000 workers placed on unpaid leave in 2021 as an accommodation for their religious objections to getting vaccinated.

If the certification order survives, it would be a boon for workers who bring class actions within the Fifth Circuit alleging that employer policies violate federal anti-bias law, especially for those claiming religious discrimination. The circuit covers Texas, Louisiana, and Mississippi.

The case stems from United’s efforts to vaccinate its workers in August 2021, during a summer surge in Covid infections that drove weekly deaths to more than 15,000 by mid-September.

United required their US-based employees to get inoculated against Covid; some workers who qualified for religious or medical accommodations to the vaccination requirement were put on unpaid leave.

Workers sued as a class for compensatory and punitive damages as well as backpay.

The airline’s challenge to the class certification order isn’t the first time the case has gone before the Fifth Circuit.

The appeals court’s earlier consideration of the United case produced a 2022 decision holding that being forced to get a shot in violation of religious convictions is an “extraordinary and rare” injury that can’t be fixed by winning money damages, reinstatement, or other remedies that come with prevailing on a Title VII claim. But the ruling was unpublished, and subsequent courts have confirmed its lack of precedential value.

Fifth Circuit Judges Don Willett and Kurt Engelhardt, both Trump appointees, and Stephen Higginson, an Obama appointee, will hear oral argument Thursday on the class certification order.

Assessing Sincerity

Judge Mark Pittman, a Trump appointee to the Northern District of Texas, approved a class of religious objectors who were put on unpaid leave. He rejected other classes, including one composed of workers who received unpaid leave as an accommodation for medical-based objections to vaccination.

The religious objectors showed the sincerity of their beliefs on a class-wide basis by going through United’s process for seeking an accommodation and accepting unpaid leave rather than get vaccinated, the judge said in his June 2024 order.

Pittman’s ruling runs counter to the notion that the sincerity of a person’s religious beliefs is an individualized question, said Frank Ravitch, a law professor at Michigan State University who’s written extensively on law and religion.

“It is rare that courts find a lack of sincerity, but the Covid vaccine exemption cases are the exception there,” Ravitch said.

United challenged the certification of the religious class, while the employees appealed the decision against approving other worker classes.

Pittman stayed litigation in July 2024 pending the Fifth Circuit’s ruling.

Debate Over Circuit Precedent

United pointed to several Fifth Circuit precedents in its brief, arguing those rulings forbid some of the justifications for Pittman’s class certification order.

The Fifth Circuit ruled in 2023’s Braidwood Management v. EEOC that the sincerity of employees’ religious beliefs can’t be dealt with on a class-wide basis because it requires an inquiry into each worker’s state of mind, the airline said.

Moreover, United said that the Fifth Circuit’s 1998 decision in Allison v. Citgo Petroleum Corp. bars Title VII claims for damages from class litigation. The appeals court has never upheld certification of such a class since that watershed decision more than 25 years ago, the company said.

The workers, represented by Gene Schaerr of Schaerr Jaffe LLP, refuted United’s use of circuit case law in their brief.

Braidwood can easily be distinguished from the Covid vaccination case because it involved the sincerity of religious beliefs held by organizations rather than individuals, the workers said.

And circuit precedent doesn’t forbid certifying a class to seek damages against United, the workers said. The plaintiffs in Allison challenged various policies implemented in different ways over a period of 20 years, they said.

“Here, all members of the certified class suffered the same injury from a single decision that came directly from United’s chief executive,” the workers argued.

The case is Sambrano v. United Airlines, 5th Cir., No. 24-10708, oral argument scheduled 9/4/25.