A Tale of Two Paths, Part II
Greetings, and we trust everyone enjoyed a wonderful Christmas. We'd like to bring you up to speed on significant developments related to medical freedom.
Recently, the Texas legislature passed SB7, a groundbreaking law preventing Texas employers from enforcing COVID vaccine mandates. Violating this law subjects employers to a $50,000 fine per employee. Special thanks are in order for Jackie Schlegel of Texans for Medical Freedom and the dedicated members of Move Freely Texas, whose unwavering efforts have brought about positive changes at the state level. These organizations exemplify how ordinary individuals can engage in state politics and enhance their lives.
Additionally, just days before Christmas, the pilot union unveiled a new Tentative Agreement, marking a potentially positive end to a prolonged contract battle. However, there are notable shortcomings in the proposed medical freedom section (Section 6.X).
In September, SWFF leaders addressed the union's Board of Directors, proposing robust medical freedom contract language. They highlighted the inadequacies in the contract language of other major airlines and dispelled rumors that Delta's contract was considered the gold standard. While Derek Archer's inclusion of that language in Delta's recent pilots' contract is appreciated, it was not vetted by ALPA or Delta's medical freedom caucus.
SW Freedom Flyers aimed to enhance and fortify the OAL language. Though the specter of COVID may be waning, the situation remains uncertain. EO14042 awaits Supreme Court testing in lower courts. While the Supreme Court upheld the CMS mandate for healthcare workers, it vacated mandates for the military and federal employees, leaving room for potential future reconsideration by the White House.
We never foresaw our fellow employees enduring such hardships and uncertainties. Given these challenges, it is vital that we prioritize the implementation of safeguards to prevent similar situations in the future. At SW Freedom Flyers, we staunchly believe in protecting the rights and well-being of individuals. It is imperative that we address not only financial and work-related concerns but also ensure that dissenting views do not lead to unemployment. Let us collectively strive to establish a society where every employees voice is heard and respected, and safety nets are in place to support those in need.
(Best viewed on a large device in landscape)
The discrepancy between the proposed language on the left and the actual language in the contract is apparent, with the former being nearly twice as extensive. It is inconsequential which bureaucratic entity is responsible for the insufficient language. What holds significance is your proactive stance as an employee, compelling a reconsideration and rectification. If the language cannot be adequately revised, it should be expunged entirely. Opting for a course of action outside the antiquated RLA process may enhance our chances of success.
Take charge and insist on a resolution that truly safeguards your rights and concerns.
THE FINE DETAILS:
The presentation presented herein was personally delivered to the union Board of Directors during their September 2023 meeting. We highly recommend a comprehensive review of the provided information. After thoroughly examining the content, we encourage you to make an informed decision on whether endorsing the new contract aligns with your best interests.
Background:
On September 9, 2021, President Biden issued Executive Order 14042 requiring parties contracting with the federal government to comply with certain COVID-19 safeguards as prescribed by the Safer Federal Workforce Task Force. These safeguards included a requirement that employees of certain federal contractors be vaccinated against COVID-19 during performance of the contract work. For Southwest Airlines to remain eligible for federal government contracts, the company would be required to abide by this Executive Order and would eventually call for all of its employees to document vaccination against COVID-19. This vaccine requirement did not take into account the regulatory authority of the Federal Aviation Administration over pilots’ medical qualifications.
Holders of FAA-issued Airman Medical Certificates of Medical Clearances may receive the Pfizer-BioNTech, Moderna, or Johnson and Johnson COVID-19 vaccine; however, a 48-hour no fly/no safety related duty interval must be observed after each dose.
Individuals holding an Airman Medical Certificate or Medical Clearance should be reminded that they are prohibited from performing flight crewmember duties or air traffic control duties if they do not meet medical certification requirements, including those related to adverse events from medications that render them unable to perform such duties.
AAM will monitor the patient response to each vaccine and may adjust this policy as necessary to ensure aviation safety. Additional vaccines will each be evaluated as EUA’s are issued.
This quote from the FAA.gov website was observed on September 16, 2021. Five days after the signing of EO 14042, the Federal Aviation Administration’s medical guidance was that certificate holders “may” receive vaccines from an approved list, but would not be authorized to perform crewmember duties for 48 hours after the shot or longer “if they do not meet medical certification requirements, including those related to adverse events from medications that render them unable to perform such duties.” This statement came with the implied warning to proceed at your own risk. These vaccines were not subject to the FAA standard testing protocols for new medications and while not prohibited, the FAA did not require vaccination as a condition of Medical Certificate issuance.
On October 4, 2021, Southwest Airlines announced all employees must receive the COVID-19 vaccine or risk termination. The company stated this vaccine mandate was necessary to comply with EO 14042 in order to remain eligible for federal contracts. In typical Southwest fashion, the company placed profits from these federal contracts over its employees. This announcement requiring all employees be vaccinated came at a time of great controversy about the safety and efficacy of the COVID vaccines. Our CEO Gary Kelly, vaccinated and twice boosted, returned from Washington DC with COVID. A nationwide censorship campaign was in full effect to silence anyone speaking out against these vaccines. Our pilots had been flying around the country during the height of the pandemic; many of them had contracted COVID at least once and the topic of natural immunity was not considered. A major up-tick in young, healthy pilots having strokes and heart attacks was impacting our SWAPA family. To be clear, there was a major deficit of trust surrounding these vaccines and many wanted more time to evaluate if this was a sound medical decision. Pilots were faced with a choice of termination of employment or risking an unnecessary medical treatment with potentially career ending repercussions. The company-imposed vaccine requirement disregarded the standard of medical qualification established by the FAA and placed the entire liability of any adverse reaction to these highly politicized vaccines upon the SWAPA pilots. EO 14042 was later ruled as beyond the authority of POTUS and a national injunction was issued in federal court. Southwest Airlines reluctantly extended the deadline of any vaccine requirements for its employees and eventually the policy went away quietly.
Analysis:
The medical language of SWAPA’s current contract does not provide adequate protections against potential Southwest Airlines policy directives regarding our medial certificates and would benefit from shoring up this language. The current contract language:
SECTION 20: PHYSICAL EXAMINATION
A. STANDARDS
1. The physical standards required of a pilot will be the standards established by the FAA, by statute, or other applicable governmental regulation. In the event of a change in the method of medical certification or standards, the provisions of this Agreement may be reopened upon request of either party for the limited purpose of renegotiating with respect to the provisions of this Section.
2. The Company will accept any medical waiver (statement of demonstrated ability or similar) issued by the Federal Aviation Administration that allows a pilot to hold the required class of medical certificate.
3. If a pilot cannot maintain the class of medical certificate the FAA, by statute, or other applicable government regulation, requires of him in his current status, he must notify the Company Immediately. Thereafter, such pilot will be permitted to bid only vacancies in a status where his seniority and his medical certificate under the Federal Air Regulations, by statute, or other applicable government regulation, will permit him to hold.
Paragraph 1 establishes the FAA as the authority of pilot medical standards but it does not explicitly prevent the company from adding their own requirements regarding vaccines or other medical treatments nor does it protect pilots’ sensitive medical information from company inquiries. Another item not addressed in the current language is how to address the issue of quarantines. No contractual policies exist for a pilot who was directed to quarantine for exposure but was otherwise fit for duty to fly their contractually assigned trips or participate in open time. The company invented these policies at whim with inconsistencies between those who documented vaccine status and those who had not. Protections are needed to prevent the company from directing the use of a pilot’s sick time.
Contractual medical freedom language to address these issues is becoming an industry standard. Delta airlines lead this trend with the following provisions to their contract:
1. Prohibits the Company from requiring pilots to undergo any medical procedure, other than what is required to maintain a First Class Medical, and
2. Prohibits the Company from requiring pilots to disclose medical information outside of that required by Sections 14 and 15 of the PWA, and
3. Prohibits the Company from disclosing medical information about a pilot to any third-party or government agency without that pilot’s explicit consent.
With these protections, the First Class Medical is what determines if a pilot can medically exercise their certificate, Delta pilots gained right to medical privacy from unnecessary Company overreach, and effectively shoe-horned HIPAA rights to their medical information into their contract. Some bid restrictions do exist in the fine print:
“If a pilot does not meet a governmental travel requirement to operate to an international or domestic destination due to their vaccination status or for other medical reasons, the pilot will be bid restricted or removed from rotations to such destination(s) without pay protections.”
United Airlines negotiating committee received guidance on strong medical freedom language from Airline Employees for Health Freedom (AE4HF). At first glance, the executive summary of their medical language appeared industry leading. Excerpts from the executive summary include:
--Company prohibited from requiring any vaccine or medical procedure beyond the requirements for an FAA medical including Special Issuance.
--No requirement to share medical information beyond records to demonstrate compliance with FAA medical requirements, except as required elsewhere in Agreement
--No restrictions in PBS solution due to vaccine status.
--Drop and block for destinations where a Pilot is unable to fly due to operational impact of government restrictions
-Pilots will have the ability to trade away from restricted destinations prior to any loss of pay.
-If Pilots are still scheduled for the trip within 14 days of departure the trip will be dropped without pay and scheduled blocked on those days.
--Pay protection when directed to stay home by the Company when otherwise fit for duty.
These provisions appear to be robust and stronger than the medical freedom language in the Delta contract. All of the language protecting Delta pilots from HIPAA violations, and requirements above and beyond those outlined in the FAA First Class Medical Certificate are retained in the United Airlines executive summary with additional, reasonable protections against scheduling and pay discrimination based on vaccine status. However, the devil shows up in the details of the United Contract. ALPA sold the United Pilots a bill of goods:
21-DD-5 Medically Unqualified Pilots. A Medically Unqualified Pilot is a Pilot who is assigned a Flight to a destination and who (a) fails to meet Governmental Restrictions for that destination, (b) would incur an Operational Impact flying to such destination, or (c) has not provided documentation about their medical status that would establish their medical qualification for that destination.
A Medically Unqualified Pilot will not be placed in Dependability Monitoring for removal from and assigned Trip due to a Restricted Segment.
A medically Unqualified Pilot will not be awarded a vacancy or displacement into a Category that operates to a destination that is subject to an Operational Impact or Governmental Restriction.
A Medically Unqualified Pilot may not pick-up or trade into Trips that contain a Restricted Segment……
The United Contract does not require vaccination but clearly establishes a two tier system where failure to provide vaccination status will significantly impact a pilot’s ability to work. Two and a half pages of contract language give the company authority to restrict the Medically Unqualified. Something as simple as a hotel transportation provider requiring proof of vaccination meets the criteria for Operational Impact and would make the pilot in question Medically Unqualified. This language empowers the company to effectively place any pilot who does not meet their standard of medical requirements in an unscheduled/unpaid status. This creates an end-around to vaccine mandates.
Recommendations:
New contract language could provide protections for pilots from the company imposing medical mandates under threat of termination. These provisions are cost neutral and do not place any further administrative requirements on the company. Important goals to accomplish with this language include:
--The FAA standard for medical clearance remains the ultimate authority. The company may not add any additional requirements.
--The company may not require a pilot to share any medical information other than proof of medical clearance in the form of a medical certificate. (Provisions may be needed for other non operational requirements such as disability benefits etc.)
--The company may not share any pilot’s medical information except as necessary for non operational requirements such as disability benefits etc.
--The company may not place bid restrictions on pilots based on medical criteria outside the boundaries of the FAA medical clearance. It will be the pilot’s responsibility to de-conflict any operational impact due to vaccine status.
--The company may not direct the usage of sick leave for the purpose of quarantining asymptomatic pilots due to operational exposure.
Through modifying the Delta Airlines PWA language, modifying existing SWAPA CBA language or a section rewrite, new contract language could achieve the aforementioned goals. Starting with the Delta PWA language as a foundation:
1. The company may not require a pilot to undergo any medical procedure(s), other than that which is required by the FAA to maintain a First Class Medical certificate. Exception: This provision does not apply to Delta’s new-hire pilot requirements.
Note: If a pilot does not meet a governmental travel requirement to operate to an international or domestic destination due to their vaccination status or for other medical reasons, the pilot will be bid restricted or removed from rotations to such destination(s) without pay protection.
2. The Company may not require a pilot to disclose any personal medical or protected health information except as expressly required under the PWA or as required by law.
3. The Company may not disclose a pilot’s personal medical or protected health information to a third-party or government agency without the pilot’s explicit written consent unless required under the PWA, for purposes of administering Company benefit plans, or as required by law.
A modification of this language to meet our medical freedom objectives:
1. The Company may not require a pilot on the master seniority list to undergo any medical procedure(s), interventions, or vaccinations, other than that which is required by the FAA to maintain the required class of Medical Certificate. The Company will accept any medical waiver (statement of demonstrated ability of similar) issued by the Federal Aviation Administration that allows a pilot to hold the required class of medical certificate.
2. The Company may not require a pilot to disclose any personal medical or protected health information except as expressly required under the PWA or as required by law. (no change)
3. The Company may not disclose a pilot’s personal medical or protected health information to a third-party or government agency without the pilot’s explicit written consent unless required under the PWA, for purposes of administering Company benefit plans, or as required by law. (no change)
4. The Company will not place restrictions on monthly schedule awards due to operational impact of government restrictions regarding vaccination status. Pilots will have the ability to trade or give away trips with restricted destinations prior to any loss of pay. If the pilot is still scheduled for the pairing within five (5) days of departure, the pairing will be removed from the pilot’s schedule and placed in open time. The pilot will forfeit pay for this pairing and have his schedule blocked on those days. (paragraph added to address bid restrictions and operational impact.)
5. If a pilot is directed by the company to quarantine when otherwise fit for duty, he will be made whole for all lost compensation, lost benefits, and reasonable expenses incurred as a result of being removed from flying. Any pay lost will be reimbursed by the Company with no reduction to the pilot’s Sick Leave Account. If a pilot is directed to quarantine while on a pairing, he is entitled to all pay, hotel accommodations and TAFB rigs until allowed to return to domicile. (paragraph added to address quarantine)
6. If a pilot cannot maintain the class of medical certificate the FAA, by statute, or other applicable government regulation, requires of him in his current status, he must notify the Company Immediately. Thereafter, such pilot will be permitted to bid only vacancies in a status where his seniority and his medical certificate under the Federal Air Regulations, by statute, or other applicable government regulation, will permit him to hold. (paragraph 3 from current CBA)
7. Nothing in the section shall be construed as superseding or waiving any employee rights under Title VII of the 1964 Civil Rights Act, as amended, or the Americans with Disabilities Act. Nothing in this section shall be construed to allow either the Association or the Company (or both) to supersede or waive any employee rights under Title VII or the ADA, whether by contract, side letter, MOU, or otherwise. The reasonable accommodation process remains, as it always has been, outside the realm of collective bargaining and the Railway Labor Act.
Another way to accomplish the stated goals is to use Southwest Airlines CBA as a template for the rewrite. Minor additions (underlined) would strengthen existing language.
--Add the line: “The Company is prohibited from requiring any vaccine, treatment or medical procedure beyond the requirements for an FAA medical including Special Issuance.” to our existing para1. This will read:
1. The physical standards required of a pilot will be the standards established by the FAA, by statute, or other applicable governmental regulation. The Company is prohibited from requiring any vaccine or medical procedure beyond the requirements for an FAA medical including Special Issuance. In the event of a change in the method of medical certification or standards, the provisions of this Agreement may be reopened upon request of either party for the limited purpose of renegotiating with respect to the provisions of this Section.
--Add the line: “A Pilot will not be required by the company or the union to share medical information beyond records to demonstrate compliance with FAA medical requirements” to our existing para2. This will read:
2. The Company will accept any medical waiver (statement of demonstrated ability or similar) issued by the Federal Aviation Administration that allows a pilot to hold the required class of medical certificate. A Pilot will not be required by the company or the union to share medical information beyond appropriate certificate to demonstrate compliance with FAA medical requirements.
--Sustain para3.
--Add para4:
4. The Company will not place restrictions on monthly schedule awards due to operational impact of government restrictions regarding vaccine status. Pilots will have the ability to trade or give away trips with restricted destinations prior to any loss of pay. If the Pilot is still scheduled for the trip within 5 days of departure, the trip will be removed from the pilot’s schedule and placed in open time. The Pilot will forfeit pay for this trip and have his schedule blocked on those days.
--Add para5:
5. If a pilot is directed to quarantine by the Company when otherwise fit for duty, he will be made whole for all lost compensation, lost benefits, and reasonable expenses incurred as a result of being removed from flying. Any pay lost will be reimbursed by the Company with no reduction to the pilot’s Sick Leave Account. If a pilot is directed to quarantine while on a trip, he is entitled to all pay, hotel accommodations and TAFB rigs until allowed to return to domicile.
--Add para:
6. Nothing in the section shall be construed as superseding or waiving any employee rights under Title VII of the 1964 Civil Rights Act, as amended, or the Americans with Disabilities Act. Nothing in this section shall be construed to allow either the Association or the Company (or both) to supersede or waive any employee rights under Title VII or the ADA, whether by contract, side letter, MOU, or otherwise. The reasonable accommodation process remains, as it always has been, outside the realm of collective bargaining and the Railway Labor Act.
--Existing para 4 and beyond in the current CBA would be retained and renumbered as appropriate.
Summary:
The Company seeks loose language to provide the greatest operational maneuverability. This is evident in how they currently run operations and how they implemented COVID policy in disregard to the Association. The unfortunate reality is that the contract will now have to codify restrictions so as to prevent the Company from exploiting association pilots. The stated Medical Freedom goals are protections that can be put in place with little to no cost to the Company and the Association. The two proposed options for contract language capture the intent of the goals. It is desirable to put medical freedom language in our new contract however; a clumsy rewrite can make the contract worse. No contractual language on this matter would be preferable to the United Airlines two tier system of Medically Qualified and Unqualified. Please consider our recommendations outlined above to make the Medical Freedom language in the new SWAPA contract industry leading.