An ADA Tale of Vaccine Exemptions, Employer Notice, and the Interactive Process

Posted on: July 16, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

A recent case involving controversy about mandatory vaccines teaches two ADA lessons:

  • A doctor’s note may be sufficient notice to an employer of a disability and
    accommodation request.
  • If you do something for nondisabled employees, don’t deny the same thing for
    someone with a disability.

Aleka Ruggiero was a registered nurse working for Mount Nittany Medical Center (MNMC).  She suffered from severe anxiety and eosinophilic esophagitis.  These conditions limited her ability to perform certain life activities such as eating, sleeping, and engaging in social interactions. Despite her impairments, Aleka was able to perform her duties as a nurse at MNMC.

The vaccine brouhaha.  MNMC directed all clinical employees to receive a vaccine for tetanus, diphtheria, and pertussis (the TDAP vaccine) by May 15, 2015.  Aleka did not get the vaccine but faxed MNMC a note from her doctor stating Aleka was “medically exempt” from receiving the vaccine due to medical concerns.  MNMC asked the doctor to identify which of the eight contraindications listed by the vaccine manufacturer applied to Aleka to exempt her from receiving it.  The doctor responded that Aleka had severe anxiety about some of the potential side effects, especially in light of her history of allergies and eosinophilic esophagitis.  “Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits.”  This note did not address which, if any, of the contraindications applied to Aleka.

MNMC sent a letter to Aleka stating that the information provided by the doctor was insufficient to excuse her from the vaccine and setting a new deadline for her to receive it.  Aleka suggested she be allowed to wear a mask at work – as she alleged other nurses were allowed to do to accommodate their refusals to receive the flu vaccine.  She also alleged that other MNMC employees were allowed to refuse the TDAP vaccine yet remain employed.  Aleka did not receive the vaccine by the new deadline and was terminated by MNMC.

A doctor’s note can be adequate notice.  Aleka sued, asserting a claim for failure to accommodate, among others. The trial court dismissed Aleka’s claim, holding that (1) she failed to allege that MNMC was on notice of her disability and request for accommodation and that, in any event, (2) MNMC had fulfilled its obligation to engage in the interactive process when it notified Aleka that it would exempt her from the vaccine if she suffered from any of the identified contraindications.

The Third Circuit reversed and reinstated Aleka’s claims.  As to the first issue, the court noted that an employer is not required to engage in the interactive process to identify an accommodation unless it is on notice of a disability and request for accommodation, but the threshold for adequate notice is fairly low.  Aleka’s request for exemption from the vaccine coupled with two doctor’s notes to the same effect (which included information about her medical conditions) were adequate to put MNMC on notice of both Aleka’s disability and her request for an accommodation.

Oh, that interactive process.  On the second issue, the court recognized that both the employer and the employee bear responsibility for identifying a reasonable accommodation.  A party who fails to communicate, either by initiation or response, may be acting in bad faith.  In this case, MNMC showed no signs of having considered Aleka’s request to wear a mask or offering to discuss available alternatives.  This was sufficient to raise the inference that MNMC had failed to engage properly in the interactive process and deprived Aleka of the individualized consideration to which she was entitled under the ADA.  According to the court, MNMC was not obligated to provide the accommodation requested by Aleka, “but it also could not simply reject the request and take no further action.”

Accordingly, the case was sent back to the trial court for further litigation proceedings.

Ruggiero v. Mount Nittany Medical Center  (3rd Cir. 2018).

Pings for Employers

This case is in early stages yet and the employer may still prevail, but more a more thoughtful and involved approach might have saved MNMC a lawsuit.

  • Be sure to engage in the interactive process. Even though an employee has an obligation to identify a
    reasonable and effective accommodation, this court and the EEOC will tell you that rejecting the employee’s
    suggestion, without more, is not “interactive.”
  • Consider what you do for employees in other situations. MNMC apparently felt that Aleka’s failure to identify
    a specific contraindication justified denying her request to avoid the vaccine and wear a mask.  And maybe, in
    litigation, they will be able to show facts that justified differing treatment of Aleka.  But how much better to allow
    her to wear a mask and avoid a lawsuit, or discuss with her their objections and avoid a lawsuit?

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

Lucky Employer Skates on ADA Liability: Complaints about Noisy Workplace Not Enough to Put Employer on Notice of Need for ADA Accommodation.

Posted on: October 30, 2017 1

By Marti Cardi, VP-Product Compliance Gail Cohen, Director-Employment Law/Compliance

Despite the common feeling that employers have the ADA deck stacked against them, a recent case shows that courts will still closely compare the facts of an ADA failure to accommodate claims against the legally required elements of such a claim.  It was a close call, but the co-employers prevailed when the employee did not raise enough racket about his mental condition to put the employers on notice of the need for an ADA accommodation.

Timothy Patton was an employee of a staffing company, Talascend.  He was assigned to work at its client, Jacobs Engineering.  He claimed to have been subjected to mockery and name-calling by co-workers and his supervisor because of his stutter.  He also complained about the noise in his work space to his supervisor and asked that he move him to a quieter area “so that [his] nerves would not affect
[his] stuttering.”  Patton also complained to Talascend (which offered to reassign him; he declined)
and emailed a lead engineer at Jacobs about taking time off from work due to his stress.

As a result of his stress, Patton had a panic attack while driving and caused a car accident.  He did not
return to work at Jacobs and instead, filed a complaint with the EEOC and the Louisiana state equivalent,
accusing Jacobs and Talascend of harassment and failure to accommodate his disability in
violation of the ADA.

The trial court granted summary judgment in favor of co-employers Jacobs and Talascend, and
the 5th Circuit Court of Appeals upheld this ruling.  It strikes me, however, as a lucky call for the
employers.  Let’s focus on Patton’s claim that Jacobs failed to accommodate him under the ADA.
The ADA requires an employer to make reasonable accommodation[s], absent undue hardship,
“to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The question was whether Jacobs knew that Patton had a “disability” and was asking for an
accommodation when he complained about noise in his work area.

Patton had made numerous complaints linking his nerves and stuttering to the noise in the workplace
and asked to be moved to a quieter work location.  The court did not find this to be sufficient.
Rather, Patton needed to show that the limitations he experienced were the result of his disability,
and that Jacobs knew it.  In particular, in the case of a mental disability like Patton’s, “specificity in
attributing a work limitation to a disability is particularity important.”  Jacobs and Talascend could
not be expected to know of or understand Patton’s “childhood onset fluency disorder” without more
specific information from him.

With respect to the ADA hostile work environment claim, Jacobs again dodged a bullet.  The 5th Circuit
found there was enough evidence of harassment about Patton’s stuttering by quite a number of people
and over an extended period of time to allow the claim to be sent to a jury.  However, Patton had failed
to avail himself of both defendants’ anti-harassment policies and thus could not maintain his claim for
hostile work environment.

Patton v. Jacobs Engineering Group, Inc. and Talascend, LLC (5th Cir. October 24, 2017).  

Pings for employers:

  • There are no “magic words” for an employee to request an accommodation, but as the Patton
    case makes clear, the employee still needs to provide enough information for the employer to
    understand he is seeking an adjustment in his work conditions for a reason related to his disability.
  • Be wary, though! The outcome of this case was a lucky one for the employers.  If Patton had phrased
    his complaints just slightly different, or provided a bit more information about his condition or his
    need – or if the case had been determined by a different court – the outcome could have been
    a jury trial.  In that case, the evidence of harassment based on Patton’s stuttering could have
    had an impact on the entire case.
  • When in doubt about whether an employee is requesting an ADA accommodation, ask the employee,
    “How can I help?” This opens the dialog without assuming the employee has a disability or
    needs an accommodation.  Then, with someone like Patton, you can then explore what is causing
    his problem and what impact it has on his ability to work.
  • Make sure your policies provide employees with clear avenues (more than one!) of complaint in
    the event of discrimination, harassment, or retaliation – and that employees know about them.
    Although this case does not give us much factual detail, this type of policy saved the employers
    from liability because, apparently, Patton did not register his complaints in the correct manner
    or with the correct persons – probably the HR department.
  • Finally, as we always advise, train your supervisors so they know when someone might be asking
    for an ADA accommodation and to whom they need to direct the employee to start the
    interactive process.

 

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com.