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.