The 2nd Circuit—which covers Connecticut, New York, and Vermont—recently heard claims that a pharmacy violated the Americans with Disabilities Act (ADA) when it fired a pharmacist, whose fear of needles prevented him from administering immunizations. Did the pharmacist have a claim for disability discrimination?
“Tobias” worked as a pharmacist for Rite Aid Corporation and its predecessors for 34 years. In that role, he was responsible for handling medications and counseling customers about their medications.
In 2011, Rite Aid began to require its pharmacists to administer immunizations to customers. The company revised its written job description for pharmacists to require them to hold a valid immunization certificate and to include immunizations among their essential duties and responsibilities.
Rite Aid wanted its customers to have the ability to come into any store anytime the pharmacy was open and receive an immunization. The company decided that immunizing would be a requirement for all pharmacists, so anyone who couldn’t perform that function wouldn’t be able to be a Rite Aid pharmacist.
Tobias suffers from trypanophobia, the fear of needles. He obtained a note from his treating physician stating that he is needle-phobic and cannot administer injections. He explained that his fear of needles causes him to become light-headed and feel that he may faint, and he would never even consider giving immunizations. As a result, he requested a reasonable accommodation under the ADA.
After receiving Tobias’ accommodation request, a Rite Aid HR manager posed questions to Tobias’ doctor, including whether there were any accommodations that would enable him to perform injections. The doctor responded that Tobias couldn’t safely administer injections because doing so would likely cause him to faint.
Rite Aid told Tobias that it wasn’t required to accommodate him and he would lose his job unless he successfully completed immunization training. Tobias replied that he couldn’t complete the training. Rite Aid then terminated his employment, informing him that he was being terminated for refusing to perform immunizations, an essential function of his job.
Tobias sued Rite Aid under the ADA and a similar New York state law. He alleged his former employer violated those laws by discharging him because of his disability, failing to provide him a reasonable accommodation for his disability, and retaliating against him because he exercised his rights under the ADA and New York law. Following a trial, the jury found in favor of Tobias and awarded him $2,612,821 in damages.
The trial court later dismissed Tobias’ failure-to-accommodate claim because he hadn’t proved that a reasonable accommodation for his disability existed. The court reduced his damages award to $1,837,821 but otherwise upheld the jury’s verdict. Rite Aid appealed.
2nd Circuit’s Decision
On appeal, the court focused on whether Tobias was able to perform the essential functions of his job, including whether giving injections is an essential function of the pharmacist position at Rite Aid. To maintain an ADA discrimination claim, an employee must be able to perform the essential functions of his job, with or without reasonable accommodation.
In evaluating whether a particular job function is essential, the court considers the employer’s judgment, the written job description, the amount of time spent performing the function, any mention of the function in a collective bargaining agreement, and the work experience of other employees in the same or similar positions. What’s stated in a job description as well as how the job is actually performed is significant.
The court concluded that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Tobias’ termination. That conclusion was supported by the revision of the written job description requiring pharmacists to obtain immunization certification and licensure, the inclusion of immunizations on the list of pharmacists’ essential duties and responsibilities, and Rite Aid’s consistent treatment of other employees, including its termination of another pharmacist who failed to undergo immunization training.
Because a reasonable accommodation cannot involve the elimination of an essential job function, the court examined whether there was a reasonable accommodation that would have enabled Tobias to perform the essential job function of administering immunization injections. Tobias had suggested that Rite Aid could have provided several accommodations, but the court of appeals rejected all of them. For example, the court concluded that Rite Aid wasn’t required to offer him desensitization therapy.
The court noted that Rite Aid had offered Tobias an alternative position as a pharmacy technician, which he chose not to accept. Moreover, the company wasn’t required to hire a nurse to give injections for him or assign him to a store with another pharmacist who would give injections because those approaches would have exempted him from an essential job function and required other employees to perform the function instead.
Because providing immunizations was an essential requirement of Tobias’ job and he failed to identify any reasonable accommodation that would have enabled him to perform that job function, the court concluded that he wasn’t qualified to perform the essential functions of his job, with or without reasonable accommodation. Therefore, Rite Aid was entitled to judgment on his wrongful termination and retaliation claims.
This case highlights some important steps that you can take to protect your organization from potential ADA claims. Be sure to include all essential functions in your written job descriptions, and update job descriptions when new responsibilities are added or old ones are eliminated.
In addition to making sure that written job descriptions are accurate, ensure that essential job functions are enforced in practice. If you don’t make sure all employees in a particular job perform a certain function, it will be harder to demonstrate that the function is essential to the job.
Howard Fetner is a contributor to the New Jersey Employment Law Letter.
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Author: Howard Fetner