In addition, employees who sought exemption on the basis of the ADA or sincerely held religious beliefs were required to apply by 1 October 2021. Hawaiian received 500 exemption applications based on the latter ground. Due to the high volume, Hawaiian was unable to process all applications by 1 November 2021. To avoid dismissing employees whose applications had not been processed, Hawaiian temporarily placed them on the TPTP. Those whose applications were denied were offered the option of unpaid leave.

By 1 January 2022, about 95% of Hawaiian’s workforce had been vaccinated. Four days later, Hawaiian commenced a process to terminate the employment of those employees whose exemption applications had not been granted. Employees who were not exempted and did not apply for unpaid leave were held out of service.

The aggrieved employees brought an urgent application on 5 January 2022, in which they argued that the vaccination policy was discriminatory, retaliatory, and a violation of the ADA and Title VII (religious discrimination). They sought a temporary restraining order and an order to show cause why a preliminary injunction should not be issued. The order was not granted.

In relation to the claim of discrimination on the basis of disability, the court noted that the employees were required to establish a prima facie case. Reasonable accommodation, if available, ought to not place undue hardship on the operation of the employer’s business. It should not be too onerous, considering the employer’s size, economic circumstances, and other relevant conditions. The employer would in this instance bear the onus of demonstrating the undue hardship. The court was satisfied that the company discharged the onus.

The court also found that Hawaiian’s vaccination policy made provision for reasonable accommodation based on religion and / or disability. The employees however, failed to establish a case of discrimination on these grounds.

In relation to reasonable accommodation, the court held that, reasonable accommodation meant accommodating the employees without undue hardship to Hawaiian. The court concluded that accommodating the applicant beyond what is already provided for in the policy will result in undue hardship to Hawaiian.  The court held that by implementing the vaccine policy, Hawaiian did not victimise the employees on the basis of their religious beliefs and/or medical conditions, but employees suffered the consequences as a result of not complying with the policy. There was no retaliation in response to the exemptions they sought.

The court engaged in a balancing exercise and found that public interest outweighed the interests of individual employees as the vaccine policy was implemented to protect Hawaiian’s workforce and the traveling public, and to curb the spread of COVID-19.