Employment Law Daily Employee fired after refusing to establish MMR immunity or get vaccine can’t revive ADA claims
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Tuesday, December 11, 2018

Employee fired after refusing to establish MMR immunity or get vaccine can’t revive ADA claims

By Brandi O. Brown, J.D.

A healthcare worker who was discharged when she refused to obtain an MMR vaccination or otherwise establish her disease immunity, which was required as a condition of continued employment after a merger, was unable to revive her ADA and MHRA claims on appeal to the Eighth Circuit. Although the appeals court disagreed with the district court in its analysis, it nevertheless concluded that the employer’s decision to require employees with client contact to complete a health screen was job-related, consistent with business necessity, and no more intrusive than was necessary. The lower court’s decision was affirmed (Hustvet v. Allina Health System, December 7, 2018, Grasz, L.).

Immunization policy. As a condition of continued employment after her former employer merged with Allina Health System in 2013, the independent living specialist (ILS) was required to complete a health screen, which included testing for immunity to certain communicable diseases and a “Respirator Medical Evaluation,” an OSHA-inspired form that asked questions about potential health conditions directed at evaluating safe respirator fit and use. The employee was uncertain whether she had been immunized for rubella, one of the diseases for which immunity was required. She did not complete the form, writing “N.A.” instead after discussions with her supervisor.

MMR vaccine refused. Although the employee later stated she was willing to complete the RME despite her feeling that it was invasive and unnecessary, she would not get the MMR vaccine because she “had severe cases of mumps and measles—the MM part of the MMR.” She had “many allergies and chemical sensitivities” and told the Allina representative she wanted to limit her “exposure;” she offered to take a rubella-only vaccine instead of the MMR. However, that vaccine was not available and the employee refused to become immunized. She was fired by Allina due to her refusal to comply with the immunization requirements and her failure to complete the RME, which the employer characterized as a voluntary resignation of her position.

The employee then sued for discrimination, unlawful medical inquiry, and retaliation under the ADA and the Minnesota Human Rights Act. Her employer filed a motion for summary judgment, which was granted, and she appealed.

Unlawful exam claim. Although the appeals court agreed that an award of summary judgment in favor of the employee was appropriate, it disagreed with the lower court’s analysis of the unlawful examination claim. The district court had determined that the examination claim failed as a matter of law because the employee had not been injured; rather, the district court reasoned, she lost her job because she did not establish she had immunity to the diseases, not because she refused to complete the health screen. The appeals court disagreed. The evidence demonstrated that the employee suffered a tangible injury (loss of her job) as a result of her refusal to complete the health screen.

Health screen requirement holds up. Nevertheless, the appeals court explained, summary judgment for the employer was appropriate. The health screen in question was consistent with the ADA’s requirements. Even if it was an entrance examination as governed by 42 U.S.C. sec. 12112(d)(3) as the employee contended, it was a permissible one. The post-merger decision to force those employees with client contact to undergo a health screen was job-related—the undisputed evidence showed the purpose of the screen was to ensure that these employees had immunity to communicable diseases as recommended by the CDC and in furtherance of other requirements. Testing would reveal if employees posed a risk of exposure for clients. While rubella has been eliminated in the United States, it is still common elsewhere and still poses a danger to expectant mothers and infants. Thus, it was job-related, consistent with business necessity, and it was no more intrusive than it needed to be. The requirement also held up under state law.

“Garden-variety allergies.” As for the employee’s claim that her employer failed to accommodate her disability, which she contended resulted from her chemical sensitives, allergies, and past history of a seizure disorder, the court also affirmed summary judgment. First, there was insufficient evidence to support a conclusion that either the sensitivities or allergies substantially or materially limited her ability to perform major life activities. She had never been prescribed an EpiPen, had never seen a specialist, and had never been hospitalized as a result of a reaction. She did not take prescription medicine for serious reactions, she had never sought significant medical attention, and she never had to leave work early because of a reaction. Instead, she suffered from “garden-variety allergies” that “moderately impact her daily living,” which is not sufficient for a reasonable fact-finder to conclude she was disabled.

Unknown seizure disorder. As to her seizure disorder, her claim failed because there was no evidence that her employer had reason to know about past seizure episodes, which occurred decades before. The employer could not be “faulted for failing to accommodate a disability of which it was not aware.”

No retaliation resurrection. Finally, the court declined to resurrect the employee’s retaliation claim. She could not show the proffered nonretaliatory reason for her termination was pretextual, even if the court were to assume her opposition to the screening was an accommodation request, and even if the court assumed it was based on a reasonable, good faith belief that she was entitled to accommodation.

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