You may have seen more pharmacies offering immunization shots in the last few years. That means someone at the pharmacy needs to administer those shots. Usually that someone is a pharmacist. What happens when one of those pharmacists, is a longtime employee who happens also to suffer from trypanophobia, aka fear of needles? Is that a disability under the ADA/ADAAA? If so, is the employee entitled to a reasonable accommodation? What happens if an employee refuses to administer the shots and the employer then fires him/her? Is that an ADA violation? The US Court of Appeals for the Second Circuit says “No”. Wait. So an employer can fire an employee suffering from what sounds like a disability and not suffer consequences? In this case, yes. Read on to learn why this court held that the facts in this case allowed it to reach this result.
(image from news-leader.com)
The case is Christopher Stevens v Rite Aid Corp Docket Nos. 15-277(L) March 21, 2017. Mr. Stephens, a pharmacist employed for a combined total of 34 years at Rite Aid (and Ekerd before Rite Aid acquired it). He performed all his job functions satisfactorily until 2011. Having identified an unmet need for vaccinations in the healthcare market, Rite Aid, along with other pharmacies, began requiring its pharmacists to administer vaccinations. In April 2011, Rite Aid updated its pharmacist’s job description, listing administering vaccinations as an essential job function. Mr. Stephens has a fear of needles. He asked for a reasonable accommodation. Mr. Stephens was told he would have to undergo training to administer vaccinations and that he would be terminated if he did not do so. After his refusal to attend training, Rite Aid fired Mr. Stephens, and he sued under the ADA/ADAAA for disability discrimination, wrongful discharge, failure to accommodate and retaliation. Initially, Stephens won $2.6 million verdict at the trial level. After post-trial motions and reconsideration and all sorts of other procedural mechanisms (the details of which I will not bore you with here) both sides appealed different parts of the ruling.
We’ll come back to the specifics of Stevens in a moment. Let’s pause and look at what the ADA says in a nutshell. The ADA prohibits discrimination in hiring, and all terms and conditions of employment (including discharge) on the basis of a person’s disability (or record of disability or perceived disability). The ADA further states that failure to provide reasonable accommodations for qualified individuals with disabilities is discrimination. This raises the following questions: a) is fear of needles a “disability” within the meaning of the ADA? b) is the employee a “qualified individual” within the meaning of the ADA? and c) is there a reasonable accommodation for a pharmacist whose job includes administering vaccinations?
You may already know that the ADAAA made it very clear that the term “disability” is to be very broadly construed. Employers are expected to more or less assume that an individual having a particular condition is disabled and begin the interactive process in order to determine whether and/or how to provide a reasonable accommodation. What makes someone “qualified”? S/he must be able to perform his or her essential job functions with or without a reasonable accommodations. The courts and the ADA itself is clear that employers have broad discretion in determining what job functions are essential. Courts will give great deference to job descriptions. Rite Aid updated its job description and made it clear that administering vaccinations is an essential job function for pharmacists. The court accepted Rite Aid’s determination that vaccinations are among a pharmacist’s essential job functions.
So, what if any reasonable accommodation would be available to Mr. Stephens? Keep in mind that the ADA does not require an employer to excuse an employee from performing essential job functions. Nor does it require an employer to rework the job functions, or provide treatment of the employee’s condition. Moreover, a reasonable accommodation has to be a measure that would enable an employee to perform his or her essential job functions. Mr. Stephens requested desensitization therapy — essentially treatment. He requested that another pharmacist administer the shots– i.e. excusing him for performing an essential job function. He also requested a dual-pharmacist work location or shift, i.e. a location or shift where another pharmacist would also be working at the time, so that the other pharmacist could administer the shots. That request too was, according to the court, effectively a request to excuse him from performing an essential job function. The court also noted that Stephens failed to show that a dual-pharmacist location or shift was even available or that desensitization therapy would have enabled him to perform that particular job function. The court therefore found that Mr. Stephens was not a qualified individual and therefore he was not protected under the ADA. (Even if he were qualified, based on these facts, the requested accommodations were not reasonable. If there is no reasonable accommodation available and an employee is therefore unable to perform one or more essential job functions, then, once again, the employee is not a qualified individual.)
So now what? Will Mr. Stephens will petition the US Supreme Court to hear his case? If so, will the court agree to hear it? I don’t know. Here are some things employers can do, though:
- Make sure you have up-to-date, accurate job descriptions clearly identifying essential job functions;
- If an employee does request an accommodation, engage in the interactive process. Make every effort to identify reasonable accommodations;
- Offer one or more identified reasonable accommodations to the employee. You need not grant the specific accommodation requested if you can provide an equally or more effective alternative;
- If you cannot identify a reasonable accommodation and/or the requested accommodation presents an undue hardship, document the facts and the supporting evidence;
- As always– you guessed it–consult with competent employment counsel.
- To learn more about legal considerations with respect to Accommodating Psychiatric Issues at Work, sign up for my live webinar, which will be on Monday, March 27, 3 p.m. EST, 12 p.m. PST.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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