Exclusive — Federal Judge Blocks United Airlines From Imposing Employee Vaccine Mandate

A federal judge in Texas issued a temporary restraining order (TRO) against United Airlines on Wednesday, blocking the airline from imposing a vaccine mandate against any of its employees in a nationwide class-action lawsuit.

According to the judicial order, which could be the first of its kind in the country against a coronavirus vaccine mandate, United Airlines is prohibited from placing employees with religious and medical exemptions on unpaid leave until October 26 while litigation continues. The judge also prohibited the airline from denying any employee requests for religious or medical exemptions. Previously, the airline did not allow employees to apply for an exemption after August 31.

Earlier in the case, the airline agreed of its own accord to postpone its vaccine mandate until October 15 for employees with exemptions during litigation. The day before the October 8 hearing, however, United filed a partial motion to dismiss, alleging the court lacked jurisdiction over the claims in the lawsuit. In order to allow the court reasonable time to respond to the jurisdictional challenge and to rule in the evidentiary hearing for a preliminary injunction, which was reset for Wednesday, the judge issued the TRO.

United Airlines originally told its 67,000 U.S. employees they must be vaccinated against Chinese coronavirus (or secure an exemption) by September 27 or face termination. As the airline’s vaccine mandate stands, any employees with exemptions would still be considered employed but would be placed on unpaid leave and would lose their benefits for up to six years or until the airline deems pandemic conditions safe for unvaccinated employees to return, according to the complaint.

“It is unconscionable to force any person to undergo a medical treatment that they object to as a matter of faith,” said Ken Blackwell, formerly the U.S. Ambassador to the United Nations Human Rights Commission and currently with the American Constitutional Rights Union. “When so many other nations recognize that there is no medical reason for people with natural immunity to take a vaccine, it is essential that America lead the way to protect our citizens’ rights on that front also.”

The class action lawsuit, which powerhouse Washington, D.C. law firm Schaerr Jaffe filed in the U.S. District Court for the Northern District of Texas in September, represents up to 2,000 United Airlines employees.

“The Court now concludes it is necessary to issue this Temporary Restraining Order to avoid risking irreparable injury and to maintain the status quo in this case pending the Court’s hearing and resolution of Plaintiffs’ Motion for Preliminary Injunction,” Pittman wrote, noting that his order is not a ruling on the actual legality of the vaccine mandate.

United Airlines Imposes Temporary N95 Mask Policy for Unvaccinated Employees

The surprising judicial order comes at the end of several tumultuous week for the company. 

United Airlines instituted a potentially dangerous respirator mask mandate for unvaccinated employees just days after several employees filed the lawsuit alleging discrimination by the company concerning reasonable accommodations for religious and medical exemptions. 

According to an internal memo obtained by Breitbart News, the airline has temporarily mandated that unvaccinated employees wear N-95 or KN95 respirator masks at all times, effective October 2, as it waits for “the outcome of the litigation” regarding its reasonable accommodation process. The company agreed to supply employees with the respirators if they could not obtain their own. 

The memo continues in part: 

…You must wear your mask at all times in all United locations, including outdoors and on aircraft (this includes for personal or business travel). You may remove your mask only when you are actively eating or drinking and you must put your mask back on in between bites and sips. To the extent possible, please only eat or drink outdoors or in rooms alone or when socially distanced from others. Failure to comply with this mask requirement is subject to disciplinary action as outlined in the mask policy in the Working Together Guidelines. 

The policy includes strict guidance such as putting the respirator back on “in between bites and sips” — a step which arguably could lead to improperly trained employees repeatedly touching their masks, an action health experts advise against. Unvaccinated employees have also reportedly been isolated and bullied since the policy went into effect, sources told Breitbart News. Anyone who breaks the respirator policy could allegedly face termination.

“It’s been tense. You have the vaccinated — especially the junior vaccinated people happy about senior unvaccinated people, meaning their seniority is going to go up,” a United employee with knowledge of the situation told Breitbart News.

Life-Saving or Law-Breaking?

The airline’s temporary respirator mandate is quite significant given the company’s alleged breach of Occupational Safety and Health Administration (OSHA) regulations in instituting it.

According to OSHA guidelines, N95 masks are considered to be air purifying negative pressure demand respirators, meaning employers requiring workers to wear them must comply with the OSHA Respiratory Protection Program. Under the program, OSHA requires employers to take several precautions to guarantee employee safety. These methods include, but are not limited to, conducting medical evaluations to determine an employee’s ability to use a respirator, conducting fit tests, providing comprehensive training, providing maintenance and care for the respirators, implementing written policies, establishing procedures, and conducting written evaluations to ensure the respiratory program is being properly followed.

Several sources familiar with the matter told Breitbart News they have not received any opportunities for medical evaluations, fit tests, or training before or since the policy was instituted — violating OSHA regulations.  When properly worn, N95s and KN95 provide better protection than regular face masks against Chinese coronavirus. However, respirators, when improperly worn or worn for too long, can cause severe side effects and potential injury.

As a result, several employees have allegedly suffered health issues and have even been badly injured, according to a United Airlines employee with knowledge of the situation (Breitbart News intentionally has kept the identities of sources and those affected by the policy anonymous to protect them from retaliation):

Several alleged injuries resulting from improper respirator use include:

• An agent with the company allegedly fainted, which resulted in a broken clavicle, a torn rotator cuff, and a torn meniscus.
• A flight attendant allegedly fainted and fell into a jump seat
• A baggage handler working in extreme heat (up to 120 degrees) in an aircraft belly allegedly passed out and fell face first on a belt loader, suffering additional injuries.
• An agent allegedly fainted while in an office. Paramedics were called and had to cut the respirator off the employee’s face.

The Centers for Disease Control and Prevention (CDC) has openly acknowledged the dangers of improper and prolonged N95 usage, though in reference to healthcare workers.

Some side effects include:

When HCWs [healthcare workers] are working longer hours without a break while continuously wearing an N95 FFR, blood CO₂ levels may increase past the 1-hour mark, which could have a significant physiological effect on the wearer (Lim et al., 2006)*. Some of the known physiological effects of increased concentrations of CO₂ include:

1. Headache;
2. Increased pressure inside the skull;
3. Nervous system changes (e.g., increased pain threshold, reduction in cognition – altered judgement, decreased situational awareness, difficulty coordinating sensory or cognitive abilities and motor activity, decreased visual acuity, widespread activation of the sympathetic nervous system that can oppose the direct effects of CO2 on the heart and blood vessels);
4. Increased breathing frequency;
5. Increased “work of breathing”, which is result of breathing through a filter medium;
6. Cardiovascular effects (e.g., diminished cardiac contractility, vasodilation of peripheral blood vessels);
7. Reduced tolerance to lighter workloads.

Following several alleged injuries, the airline reportedly took a post-modern approach and issued a disclaimer to its staff, claiming that the N95s and KN95s are only meant to be used as masks, not as respirators, therefore absolving the company of any responsibility to provide training etc., sources familiar with the matter said.

Breitbart News reached out the the airline to ask how an N95 — scientifically — could be used not as intended by its design, but as a regular mask. The publication also subsequently asked, if that is indeed the case, why unvaccinated employees cannot simply wear normal cloth or paper face masks. Furthermore, Breitbart News asked if the airline was aware of OSHA regulations regarding respirators. United Airlines did not respond to any of these questions.

It should be noted that all throughout the height of the pandemic and before Chinese coronavirus vaccines were widely available, United Airlines employees were ordered to wear cloth face masks, which the company provided. The airline’s enforcement of N95 masks is therefore a harsher and more recent development, despite the fact that at least 90 percent of its employees are now vaccinated and reportedly protected against the virus.

Breitbart News also asked United Airlines if the company is making unvaccinated employees wear N95 and KN95 masks for hours longer than suggested by manufacturers, without trainings, fittings, or medical clearance, in order to retaliate against (and/or make uncomfortable) unvaccinated employees during pending litigation regarding reasonable accommodation to religious and medical exemptions. The company, again, did not respond to the accusation.

The Infamous Flight to Mumbai

On October 3, just one day after the company reportedly instituted its potentially dangerous respirator policy, the airline allegedly knowingly allowed a flight containing flight attendants exposed to Chinese coronavirus to travel from Newark to Mumbai, India, bringing into question the airline’s reported passion for keeping employees and passengers safe during the pandemic.

According to a voicemail left for a union called the Association of Flight Attendants (AFA) and obtained exclusively by Breitbart News, at least six crew members had close contact and even shook hands with a captain who ended up testing positive for the virus before the flight. The employees were all reportedly together in a small room for longer than 15 minutes while getting tested for the virus and were allegedly unable to maintain six feet of distance between each other — a violation of company policy, which was updated on October 1 and obtained by Breitbart News.

According to a United Airlines employee familiar with the matter, a union representative responded to the voicemail saying there was nothing he could do, though he said the big concern would be if the employees were within six feet of each other for longer than 15 minutes. He then recommended exposed employees speak to an in-flight duty manager (IDFM), which is an employee of United Airlines.

The pilot was reportedly replaced before the flight, which contained at least 190 passengers, some of whom were likely unvaccinated, as the airline does not mandate vaccination for its passengers. However, the exposed crew members, all of whom were vaccinated, allegedly remained on the flight.

According to sources familiar with the situation, an in-flight supervisor told the employees not to worry because symptoms take a few days to show up. Even though one of the employees reportedly felt sick, the supervisor ultimately told them to either stay on the flight or forgo getting paid.

While the six exposed employees allegedly returned from the trip unharmed, the employees did reportedly interact with nearly 200 passengers and hotel staff once in Mumbai. Notably, India has just begun recovering from an extremely deadly Chinese coronavirus surge which set global records for infections and deaths.

Breitbart News obtained the airline’s recently updated health guidelines that say vaccinated crew members who have been exposed to someone with Chinese coronavirus may show up to work if they show no symptoms. The policy seems inconsistent with CDC reports, which found that vaccinated people are still able to carry and spread Chinese coronavirus. People who are infected can also be asymptomatic and can even spread the virus before symptoms appear, a feature of the virus that has been widely known since the beginning of the pandemic.

Breitbart News asked the airline if it understands the current science in light of its company health policies and did not receive a response. The publication also asked if the airline made Indian health officials aware of exposure and did not hear back.

In further contradiction to the airline’s claims of cleanliness, sources familiar with the matter say the company has become extremely lax. According to a source with knowledge of the matter, dirty socks and slippers, used ear plugs, and various garbage has been left behind on flights — and that was after the cleaning crews “cleaned.” 

“The hypocrisy is the planes aren’t clean. They’ve gone back to rush them on, rush them off,” a source told Breitbart News, noting that the company also rarely uses anti-microbial spray between flights despite the airline’s claims of doing so. 

The “Bigger Story”

Democrats, who were formerly considered the party that championed workers’ rights, have largely touted vaccine mandates as lifesaving without acknowledging intrusions upon personal rights. President Joe Biden recently praised United Airlines for its mandate, calling measures like it life-saving.

President @JoeBiden touts vaccination mandates as a success while speaking in Illinois.

Biden said, “United went from 59% of their employees to 99% of their employees (vaccinated) in two months after implementing the requirement.”

More info: https://t.co/y7p3WrWc4o pic.twitter.com/VfY4oEdAwV

— KUSI News (@KUSINews) October 7, 2021

Biden said during a speech in Illinois last week:

When you see headlines and reports of mass firings and hundreds of people losing their jobs, look at the bigger story. I’ve spoke with Scott Kirby, the CEO of United Airlines who is here today. United went from 59 percent of their employees to 99 percent of their employees (vaccinated) in less than two months after implementing the requirement.

Biden failed, however, to connect the dots and explain that United’s high vaccination rate could be the result of mass firings of unvaccinated employees.

The six United Airlines employees who are  suing the company for its “draconian” Chinese coronavirus vaccine mandate allege the company has violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) by discriminating against them based on their religious and medical exemptions.

Unvaccinated employees have been allowed to continue working normally while the plaintiffs and the company gather what they need to proceed in court, and they will continue to be able to do so until October 26 due to the judge’s TRO.  Those same employees are likely the ones grappling with the airline’s temporary N95 respirator mandate.

CEO Scott Kirby has made his apparent distaste for exemptions known to employees before, which employees alleged in the lawsuit complaint.

In a video from an August 25-26 a virtual internal Flight Ops Town Hall, which Breitbart News obtained, Kirby can be heard talking about how difficult it will be for employees to obtain exemptions.

WATCH: 

One employee anonymously questioned whether employees who obtain an exemption will be place on unpaid leave, asking: “Is this really how United plans on handling this very sensitive issue?”

“I don’t think so. I, uhm, I don’t know. That is a question, I don’t know. Um, although I don’t think that’s the case,” Kirby responded, smiling.

He continued:

Um, by the way, there are going to be very few people who get through the medical and religious exemption. There’s some pretty strict rules about that. So, I would encourage any pilot that’s decided they have, all of the sudden, or any employee that has all of the sudden decided ‘I’m really religious’ um, ‘And I’m gonna say I’m gonna get…’ You know, you’re putting your job on the line. You better be very careful about that.

Breitbart News asked the airline if the internal footage shows hostility toward religious employees but did not receive a response.

President Donald Trump appointee Judge Pittman is still expected to hold a hearing in the case on Wednesday, which should last approximately six hours as lawyers from both sides present their arguments. The case is one of the largest of its kind in the United States and could arguably create a domino effect and lead to other vaccine mandate cases across the country if the judge leans in favor of the airline’s employees.

United Airlines was the first big airline to institute a vaccine mandate. Since then, bedlam has broken out as other airlines follow in its footsteps. Airline employees have protested across the country as companies fire employees by the thousands. Just this past weekend, Southwest Airlines was forced to cancel nearly 2,000 flights. The airline cited “staffing issues” and bad weather (there was no bad weather on record), though there was rumor pilots actually staged a mass protest and refused to fly just two days after the Southwest pilots union asked a federal judge to block the company’s vaccine mandate.

Notably, Breitbart News reached out to United Airlines and asked if the company wished to comment on every major accusation detailed in the article. The company did not respond to any of the more than a dozen questions by the time of publication.  

The case is Sambrano v. United Airlines, No. 4:21-cv-1074 in the U.S. District Court for the Northern District of Texas.

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.

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