Labor & Employment Law Daily Hospital employee failed to show reaction to flu vaccine was disability at time of accommodation request
Monday, October 5, 2020

Hospital employee failed to show reaction to flu vaccine was disability at time of accommodation request

By Kathleen Kapusta, J.D.

“Courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities.”

A hospital senior project manager could not show her reactions to the flu vaccine—shortness of breath and heart palpitations—constituted a disability at the time she requested an accommodation to her employer’s vaccination policy, held a federal court in New York, granting summary judgment against her ADA failure-to-accommodate claim. Nor could she show she suffered from a disability, or was regarded as suffering from a disability, when she was referred to a doctor to determine whether she had an impairment that would exempt her from the policy, said the court, granting summary judgment against her disability discrimination claim as well. And because there was no evidence of discriminatory animus on the part of her employer in suspending and threatening to terminate her for failing to comply with its policy, her retaliation claim met the same fate (Norman v. NYU Langone Health System, September 30, 2020, Torres, A.).

Vaccination policy. As she rose from clinical database specialist to senior project manager of hospital operations eight years later, the employee did not have direct contact with patients or work in areas where patients were typically present. When, in 2013, the employer adopted a policy requiring employees who worked in areas where patients might be present to either receive an annual flu vaccine or obtain an approved exemption based on a medical, religious, or personal reason, it granted all exemption requests for any reason.

Policy amendments. A 2016 policy amendment, however, required that all employees receive vaccines and eliminated exemptions based on personal reasons. Over 90 percent of medical exemption requests were granted, however, based on a stated “anaphylactic or severe allergic reaction after a previous influenza vaccine.” But another amendment to the policy in 2017 provided that employees denied an exemption had to be vaccinated, and that those who were denied an exemption but declined the vaccine could be terminated.

After that amendment, the employer denied exemption requests based solely on an egg allergy and instead offered a FluBlok—a flu vaccine developed without egg proteins, gelatin, latex, formaldehyde, preservatives, or antibiotics—in lieu of the traditional, egg-based vaccine. The employee, whose exemption requests had been granted in the past, submitted a request for an exemption based on an allergy to eggs and two previous reactions to the flu vaccine. She was referred to the employer’s doctor, who recommended that she receive a skin test to determine if she was allergic to some component of FluBlok. Although she initially declined, she agreed when she was informed that she would be terminated for failing to comply with the vaccination policy. She was suspended with pay until her appointment for the skin test.

Reaction. Upon receiving a negative reaction to the test, the employee was given the FluBlok vaccine. Forty minutes later, she began experiencing shortness of breath and palpitations. She was given albuterol and an EpiPen and taken to the emergency department. While her subsequent discharge noted a mild allergic reaction, her assessment plan suggested she may have had a panic attack. She returned to work and has since been exempted from the vaccination.

Failure to accommodate. Suing under the ADA, the employee first argued that her employer failed to reasonably accommodate her disability—an allergy to the flu vaccine—by not allowing her to wear a face mask during the 2017 flu season in lieu of receiving the vaccine. Although she argued that the vaccine causes shortness of breath and chest palpitations, which impair the major life activity of breathing, the court found she failed to show that any purported impairment substantially limited her breathing at the time she sought an accommodation and thus she did not have a qualifying disability that the employer failed to accommodate.

Affect or substantially limit? Although she pointed to her two adverse reactions to the flu vaccine, one when she was a child and the other while in nursing school, she acknowledged that as to the latter, her reaction subsided after about 20 minutes and she did not seek medical attention. Based on this record, said the court, there was no fact dispute as to whether the employee had a substantial limitation of a major life activity at the time she sought an accommodation. Indeed, it pointed out “‘courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities.’”

And while the court agreed with the employee that impairments that are either episodic or in remission can be a disability under the ADA, and that some severe reactions to vaccines can rise to the level of a disability, on this record, “no reasonable factfinder could conclude that Plaintiff’s reactions to the flu vaccine, at the time she requested an accommodation, meet the definition of a disability.”

Disability discrimination. Turning to her disability discrimination claim, although the hospital referred her to its doctor to determine whether she had an impairment that would exempt her from its vaccination policy, there was no evidence that at that time, it believed she likely had a medical condition that qualified her for an exemption. Nor could she show she suffered from, or was regarded as suffering from, a disability during the time period in question and thus this claim also failed.

Retaliation. Finally, as to her retaliation claim, the court found fact issues as to whether she requested an accommodation and whether the threat of termination, together with a suspension with pay, was an adverse employment action. But there was no showing of retaliatory animus. Not only did the board that reviewed her exemption request not have access to her name or other identifying information, she admitted her direct supervisors were trying to help her get answers to her questions and that she believed her department had her “best interest at heart.” While she believed the reviewing board was “confused,” and there was evidence other employees also had negative experiences with it, none of the employer’s actions, said the court, evinced animus on its part. Accordingly, this claim was also dismissed on summary judgment.

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