According to Pharmajet Blog, a surprising number of pharmacists suffer from trypanophobia—the fear of giving injections, which most in their profession have to do these days during flu season. The Americans with Disabilities Act (ADA) generally does not help the needle-phobic pharmacist because companies have a right to define the essential functions of a job.
Consistent with this observation, the U.S. Court of Appeals for the Second Circuit in 2017 overturned a multimillion-dollar jury verdict in favor of a trypanophobic pharmacist. The man was terminated by Rite Aid after he said he was unable to give injections to customers due to that phobia. A jury concluded that the ADA required Rite Aid to accommodate his phobia by relieving him of the duty. The Second Circuit disagreed. The Second Circuit found that although the pharmacist had worked for over 30 years without having to perform this duty, Rite Aid had the right to add new essential job functions, which it did in a revised job description. As we all know, an employer is never required to relieve an employee of performing essential job functions. The man's doctor said no accommodation could enable him to administer vaccinations, so he was fired. Legally, per the Second Circuit. An ADA claim was vanquished.
But wait, there's more. On March 11, this very same Second Circuit ruled in favor of a trypanophobic pharmacist. The court reversed the dismissal of the pharmacist's claims under the Vermont Fair Employment Practices Act. What was the difference? Well, this time there was conflicting evidence.
Here, after the requirement to administer vaccines was announced but before it became effective, the pharmacist's employer, Wal-Mart, told him he would be exempted from the duty as an accommodation for his phobia. He even was given a letter that said he was qualified to perform the essential job functions. The letter specified that the exemption was subject to the employer's right to change the job description in the future. A few months later, when the pharmacist was told he had to become certified to give vaccines and he refused, he was "constructively discharged" (which means he was forced to quit). This happened before the job description actually was changed. The Second Circuit said at the motion-to-dismiss stage, where the plaintiff should be given the benefit of all reasonable inferences in his favor, the lower court was hasty in dismissing his case.
First, written job descriptions are strong evidence of what constitute essential job functions. Employers are afforded deference here. Taking the time to have accurate job descriptions that specify what functions are essential can literally carry the day for employers in court.
Second, exempting employees from performing essential functions due to disabilities will undermine the employer's position that a function is essential. In this case, Wal-Mart made the exemption to an impending change in duties, and even specified that it was conditioned on Wal-Mart's right to update the job description. However, timing is, as they say, everything. Wal-Mart's demand that the employee become certified happened before the job description was changed, so at least at the motion-to-dismiss stage, the question of whether giving vaccines was an essential job function at the time was "up for grabs."
Finally, employers, think before you write and consider how it will be interpreted by a third party (i.e., prospective counsel to your aggrieved employee, judge, or jury). When you are dealing with an employee who is seeking an accommodation, the written record must be precise and should hew to what the law requires. What you write may become evidence in an ADA or state law case.
Elizabeth Torphy-Donzella is an attorney with Shawe Rosenthal in Baltimore. Reposted with permission. ©2019 Shawe Rosenthal. All rights reserved.