Pushback?

I'm skeptical of stories that pilots and other staff at Southwest are pushing back against the effectively non-existent vaccine mandate by calling in sick. First, the union, and other corresponding unions, make it clear that any such effort is an illegal action and by definition can't be organized. Second, there are other possible explanations for the crunch, and third, people have only so much sick time to use this way.

However, this doesn't mean workers covered by collective bargaining agreements don't have recourse. The same Southwest pilots union that says it isn't behind a sickout has filed suit against the airline.

The Southwest pilots association filed a motion for a restraining order against the airline on October 8.

“Several times since August 30, 2021, Southwest Airlines has taken new unilateral actions which violate the status quo between the parties in further violation of the Railway Labor Act,” the motion states. “Most recently, on October 4, 2021, Southwest Airlines unilaterally rolled out a new and nonnegotiated COVID vaccine mandate for all employees, including SWAPA pilots. The new vaccine mandate unlawfully imposes new conditions of employment and the new policy threatens termination of any pilot not fully vaccinated by December 8, 2021.”

Just as a lay observer, this has struck me as a problem for employers from the start. To set a deadline for employees to be vaccinated or lose their jobs imposes an entirely new condition on employment that didn't exist when they were hired. If they aren't covered by a labor agreement, that's one thing, and presumably an "at will" employment environment pertains. But if there's a collective bargaining contract, any termination outside the terms of the contract is highly questionable, and this is the point the Southwest pilots are raising.

The problem continues to be, as I've noted, that the proposed OSHA rule Biden has announced hasn't been issued and is at best many months, and potentially years, from taking effect. In the meantime, employers are imposing mandates on their own with no legal authority, based only on the threat that a rule will be imposed down the road. The optimism reflected in this story disregards this reality:

"Inside, companies are rejoicing," said Brian Kropp, distinguished vice president of research at Gartner. "It is the best of all possible outcomes for most large employers."

. . . Once the new rule from the Department of Labor's Occupational Safety and Health Administration goes into effect, companies with 100 or more employees will enjoy the benefits of a vaccine mandate without looking like the bad guy, Kropp said.

"They don't have to deal with any of the fallout that's associated with putting in their own mandate," Kropp said. "They can just blame the government for it."

Except the rule hasn't gone into effect, and the companies can't blame the government.

Los Angeles City firefighters have filed a noice of intent to sue on the same basis as the Southwest pilots:

The plaintiffs are members of the United Firefighters of Los Angeles (UFLAC). The union stated its position in an Oct. 4 bulletin, “[T]he city cannot impose any consequences relevant to the October 5 deadline” to be vaccinated for COVID-19, adding that the city’s ordinance “does not provide for any consequence, and any intended discipline must first be bargained with UFLAC.”

It appears that Intel, originally cited as a tech giant happy to comply with a federal mandate, has since hesitated. In its company policy regading COVID, sections 8.1 and 8.3, it repeats that "Intel does not require COVID-19 vaccination for its workforce", although if local governmnet requirements exist, they must be followed. But so far, the promised OSHA rule does not exist.

In addition, FAQ 8.13 prohibits managers from collecting or sharing employee medical data, including vaccination status. "Employees do not need to share whether they have been vaccinated." This in fact is a provision of federal law, the HIPAA Privacy Rule.

The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization.

Requiring anyone to show an employer, much less a bouncer, barber, or airline clerk one's "proof of vaccination" is likely a violation of federal law. Nobody seems to have thought this through, although it also appears to be an issue in the LA firefighters suit against the city.

This story is rapidly deveoping, and late last night it emerged that six United Airlines employees filed a class action suit against the carrier

claiming that those who were seeking exemptions from the vaccine mandate “were subjected to intrusive inquiries about their medical conditions or religious beliefs, including a requirement that they obtain letters from pastors.” That case is supposed to be heard today and the court restrained the airline from placing on unpaid leave any employee who receives religious or medical exemptions from the company for COVID-19 vaccinations. The court also put a temporary restraining order preventing United from denying any requests for religious or medical exemptions.

So far, this story isn't well reported, and as far as I can determine, the judge's restraining order is on a technical issue of jurisdiction, which is the matter that will be heard today, not the whole case. However, the underlying issue also seems to involve medical confidentiality and likely the HIPAA Privacy Rule.

Unmfortunately, this shows that reporters anywhere on the spectrum aren't well informed on the fields they cover, and their mental cevelopment is roughly at the level of promising middle school students.