Labor & Employment Law Daily Doctor notes, request for mask in lieu of vaccine gave notice of disability, accommodation request
Friday, June 8, 2018

Doctor notes, request for mask in lieu of vaccine gave notice of disability, accommodation request

By Lorene D. Park, J.D.

Reversing dismissal of a nurse’s ADA failure-to-accommodate claim, the Third Circuit found in an unpublished opinion that she sufficiently alleged that the medical center where she worked was on notice of her disability and request for an accommodation (not getting vaccinated but wearing a face mask instead), and a jury could find that the employer prematurely ended the interactive process without the required individualized inquiry into possible accommodations. The employee’s discrimination and retaliation claims were also revived (Ruggiero v. Mount Nittany Medical Center, June 5, 2018, Vanaskie, T.).

The employee, who worked as a nurse at a medical center, suffers from severe anxiety and eosinophilic esophagitis, which limit her ability to perform certain life activities, such as eating, sleeping, and engaging in social interactions. Nonetheless, she is able to perform her duties as a nurse. On April 22, 2015, she received a memo from the employer advising her that all clinical employees were required to receive a vaccine for tetanus, diphtheria, and pertussis (TDAP). The memo set a May 15 deadline for getting the vaccine and listed a phone number for questions.

Doctor’s notes. The employee did not receive the vaccine by the deadline, and when the employer notified her as much, she responded that she had an appointment with her doctor about the vaccine. On June 5, she faxed a doctor’s note to the employer stating: “The above named patient is medically exempt from receiving tdap immunization for medical concerns.”

On June 10, the employer sent the doctor vaccine information from the manufacturer and asked that the doctor identify which of eight listed contraindications, warnings, or precautions prevented the employee from receiving the vaccine. The doctor replied on July 10, identifying none of the listed items but stating that the employee was “medically exempt from receiving the Tdap immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis. Patient being terrified, I feel the risk of this Tdap injection outweighs the benefits. [Plaintiff] understands the risks of not getting this immunization.”

Termination. The employer then issued the employee a July 15 letter stating the documentation did not exempt her from the TDAP immunization and setting July 21 as her new deadline for getting the vaccine. The employee suggested a possible accommodation—permission to wear a mask instead of receiving the vaccine as other nurses had done in refusing the flu vaccine. In any event, she did not receive the vaccine by the new deadline and was terminated July 31.

Notice of disability and need for accommodation. Reversing the dismissal of the employee’s failure-to-accommodate claim under the ADA, the Third Circuit disagreed with the lower court’s conclusion that the employee failed to allege that the employer had notice of her disability. She had alleged that her doctor provided two notes recommending she not receive the vaccine and, in addition to her request for exemption, she sought permission to wear a mask. That was enough to infer the employer knew of her alleged disability and desire for accommodation. Moreover, the fact that the employer requested more information made it implausible to suggest it was not on notice of the desire for an accommodation.

Interactive process. In addition, the appeals court found that the employee’s allegations raised a plausible inference that the employer failed to properly engage in the interactive process. The employee requested an exemption or to wear a mask but her allegations suggested that the employer rejected those and prematurely ceased interacting without the individualized inquiry required by the ADA.

Discrimination claim also revived. Also reversing dismissal of the employee’s discrimination claim, the appeals court explained that she need not plead a prima facie case at the pleading stage and it was sufficient that she claimed the employer discriminated by terminating her after receiving her doctor’s notes indicating she should be exempt from the vaccine for medical reasons. The appeals court also noted that the employee’s termination could provide an inference of discrimination when considered alongside her allegation that other employees were allowed to not have the TDAP vaccine and to remain employed.

Retaliation claim. Because the employee’s request for an accommodation was a protected activity under the ADA and her termination was an adverse action, with temporal proximity providing a plausible inference of causation, the appeals court also reversed the dismissal of her retaliation claim.

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