Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Recently we addressed the EEOC’s answer to whether a Florida business can force employees to get a flu shot.  Now we are talking about the TDAP vaccine.  Is the EEOC involved in this?  Does this trigger the ADA?  A recent case can provide Florida companies with guidance. 

An employee suffered from severe anxiety and eosinophilic esophagitis, which limited her ability to perform certain life activities, such as eating, sleeping, and engaging in social interactions. But she is able to perform her duties.

The employer gives staff a memo that all employees are required to receive the TDAP vaccine. This employee does nothing.  The employer notifies the employee that she had missed the deadline. The employee responds that she had made an appointment with her doctor regarding the vaccine, and later faxes employer a note from her doctor, which read: “The above named patient is medically exempt from receiving tdap immunization for medical concerns.”

The doctor did not say that the employee suffered from any of the contraindications, warnings, or precautions listed by the vaccine’s manufacturer.

The employer sent a letter to the employee stating that the documentation provided by the doctor did not meet the definition of medical contraindication as detailed in the manufacturer’s vaccine literature and thus Tdap immunization is required and provided a new deadline.

The employee requested permission to wear a mask instead of receiving the vaccine and did not receive the vaccine by the newly imposed deadline.

The employer terminated the employee.

Can we fire employees who fail to get a vaccine for tetanus, diphtheria, and pertussis (the “TDAP vaccine”)?

Did the employer respond appropriately?

Well, the employee filed a federal discrimination lawsuit alleging that her former employer violated the Americans with Disabilities Act (ADA) by: (1) failing to reasonably accommodate her; (2) discriminating against her because of a disability; and (3) retaliating against her for requesting an accommodation.

The District Court granted the employer’s motion to dismiss, determining that employee had plausibly alleged she was a qualified individual with a disability under the ADA.

However, with regard to her reasonable accommodation claim, the District Court concluded that employee failed to allege the employer was on notice of her alleged disability and request for an accommodation. The District Court also determined that, in any event, the employer had satisfied its obligations under the good faith interactive process as a matter of law.

The employee was not happy and appealed this decision. On appeal, the Equal Employment Opportunity Commission (EEOC) appeared as amicus in support of employee.  Ruggiero v. Mount Nittany Medical Center, et al. (M.D. Pa. No. 4-16-cv-01996) June 5, 2018.

The Appellate Court fist reminded employers that discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for an employee’s disabilities.

Also, in order to determine the appropriate reasonable accommodation it may be necessary for the employer to initiate an informal, interactive process with the employee.

Now what can the employer do?

This employer responded to the doctor, enclosing information from the vaccine manufacturer and asking the doctor to identify which of the eight contraindications, warnings, or precautions listed by the manufacturer prevented this employee from receiving the vaccine.

The doctor responded that the employee “is medically exempt from receiving the Tdap immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis. Patient being terrified, I feel the risk of this Tdap injection outweighs the benefits. [Employee] understands the risks of not getting this immunization.”

What should employer do?

Initiating such a process, however, requires that the employer first be put on notice of a disability and request for accommodation.

The Appellate Court explained that under the ADA, adequate notice simply requires that an employee provide the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.

The Court determined that the employer knew of the employee’s alleged disability and her desire for an accommodation. Specifically, the employee made an appointment with her doctor to discuss the required vaccine, and her doctor recommended not receiving the vaccine because of her medical conditions. Also, her doctor memorialized her recommendation in two notes that were provided to employer. In addition to her request for an exemption, the employee sought permission to wear a mask as an alternative accommodation.

Therefore, the Appellate Court ruled that these facts were sufficient to support an inference that the employer knew of the employee’s alleged disability and that the employee communicated to the employer her desire for an accommodation.

What does this mean to employers?  Although this case did not arise in Florida, it still can provide useful guidance to Florida employers as follows:

A doctor’s note requesting an exception or adjustment to an employer’s practices may serve as a request for an accommodation.

In this case, the fact that the employer requested more information from the employee to determine if an exemption from the vaccine requirement was warranted, “renders implausible any suggestion that [Employer] was not on notice of [Employee’s] desire to be accommodated.”

Of importance, in this case the Appellate Court also determined that the employer failed to properly engage in the interactive process. Why?

The employee requested an accommodation—either an exemption from the vaccine requirement or permission to wear a mask—but both were rejected by the employer without proposing an alternative.

The take-home message from this is that although an employer is not obligated to provide the accommodation requested by an employee, it also cannot simply reject the request and take no further action.

“These allegations plausibly suggest that [the employer] prematurely ceased the interactive process and barred [the employee] from the individualized inquiry to which she was entitled under the ADA.”

If your Florida business needs assistance in relation to analyzing handling such accommodation requests, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111 before you take that action to make sure that it is legal.

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