Onya Brinson
Onya Brinson ()

Can an employer terminate an employee that suffers from trypanophobia, which is defined as a fear of needles, without providing a reasonable accommodation to that employee?

Yes. At least, that is the way the U.S. Court of Appeals for the Second Circuit answered this question. In Stevens v. Rite Aid, No. 15-0277 (2d Cir. 2017), the Second Circuit reversed a district trial court verdict that found Christopher Stevens had been the victim of disability discrimination when his employer terminated him for refusing to administer vaccinations to customers because of his fear of needles. The Second Circuit decision overturned a jury verdict in favor of the plaintiff, awarding Stevens back-pay damages of $485,633, front-pay damages of $1,227,188 to cover a period of 4.75 years, and non-pecuniary damages of $900,000, later reduced to $125,000 when the plaintiff agreed to a remittitur. Judgment was entered on Jan. 27, 2015.

There are two questions that are central to this case: (1) whether administering vaccinations was an essential job function, and (2) whether the defendant could have provided Stevens with a reasonable accommodation. This article will explore these legal questions.

Essential Job Function

The Americans with Disabilities Act prohibits discrimination in employment against “a qualified individual on the basis of disability.” 42 U.S.C. §12112(a). A qualified individual is defined as one who, “with or without a reasonable accommodation, can perform the essential functions of the job of the employment position that such individual holds or desires.” 42 U.S.C. 12111(8); see also Sista v. CDC Ixis N. Am., 445 F.3d 161, 169 (2d Cir. 2006) (citation and internal quotation marks omitted). If an employee can perform the essential functions of the job, the employer cannot discriminate. However, if the employee has a disability that prevents them from carrying out the essential functions of the job, that employee is rendered unqualified under the ADA.

The Second Circuit ruled that because Rite Aid revised its job description for pharmacists in 2011 to require immunization certification and licensure, that administering vaccinations was an essential function of the plaintiff’s job. However, the Second Circuit is belied by a Rite Aid executive who testified at trial that at the time Stevens’s employment was terminated in 2011, “Rite Aid Pharmacists spent relatively little time performing customer immunizations when the new policy was first put into place … .” Stevens, 15-0277. Usually essential functions of the job are a common part of a ‘qualified individual’s’ employment in a particular position.

The Second Circuit has spoken definitively on distinguishing essential and non-essential job functions. The Second Circuit ruled that “essential functions are defined under EEOC regulations to mean the ‘fundamental duties’ to be performed in the position in question, but not functions that are merely ‘marginal.’” Shannon v. New York City Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (citing Stone v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997).

The Second Circuit weighs the following factors in determining an essential job function: (1) “the employers judgment, (2) written job descriptions, (3) the amount of time spent on the job performing the function, (4) the mention of the function in a collective bargaining agreement, (5) the work experience of past employees in the position, and (6) the work experience of current employees in similar positions.” McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (citing Stone, 118 F.3d at 97). Courts are charged with conducting “a fact specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.” McMillan, 711 F.3d at 126.

Since the Second Circuit treats EEOC Guidelines as authoritative, the Guidelines for determining an essential job function are as follows: “A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform that particular function.” 29 C.F.R. §1630.2(n).

Analyzing the case under these guidelines, it could be argued that at the time Stevens was terminated, the act of administering vaccinations was merely marginal. First, the plaintiff was employed at the defendant’s pharmacy for 34 years, during which period he performed the essential job functions of handling medications and counseling customers regarding their medications. Stevens, 15-0277. There was no evidence presented that the purpose for being a pharmacist was to administer vaccinations, particularly since at the time of the plaintiff’s termination, a Rite Aid executive testified that there were low immunization numbers in 2011. While he stated the public was not aware of the immunization program yet and it has since grown, the courts only base essential function analysis on the status of the function at the time of the employee’s termination.

While it could be argued that there may be a limited number of employees available among whom this job can be distributed, it certainly cannot be argued that administering vaccinations is so highly specialized that the plaintiff was hired for his expertise in this position. The plaintiff in this case was hired over 30 years before the defendant’s vaccination policy ever became a part of the job functions of being a pharmacist. Furthermore, all Rite Aid pharmacists had to complete a training to administer vaccinations, meaning that it is likely that none of these pharmacists were hired for their expertise in administering vaccinations. This is especially true because Rite Aid offered training for pharmacists from 2011 to administer vaccinations.

In weighing the Second Circuit factors in determining an essential job function, there is a great deal of deference given to the employer’s judgment. The Second Circuit notes that courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” Shannon v. New York City Transit Authority, 332 F.3d 95, 100 (2d Cir. 2003) (citation and internal quotation marks omitted); see also, e.g., 42 U.S.C. §12111(8) (“[C]onsiderations shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, the description shall be considered evidence of the essential functions of the job.”). However, the Second Circuit is also clear that while employer’s judgment and written description of the job are important factors “no one listed factor will be dispositive.” Stone, 118 F.3d at 97.

In Stevens, it appears that the Second Circuit made the employer’s judgment factor dispositive in determining what functions were essential for the job of a pharmacist. Certainly after 2011, administering injections became a part of the written job description of being a Rite Aid pharmacist. Id. However, it could be instructive to examine past written job descriptions as well in this case. The jury may have weighed the fact that when the plaintiff applied to be a pharmacist at Rite Aid, administering vaccinations was not an enumerated job function. It may be an unreasonable exercise to only examine Rite Aid’s job description from 2011, a description put into place well after the plaintiff was hired.

At the time Rite Aid begin to administer its vaccination program, Stevens was not a Rite Aid applicant. If Stevens was applying for the job in 2011, then it would be reasonable to argue that Stevens was well aware that a condition of being hired was the ability to administer vaccinations and that given his fear of needles, it would make it difficult to perform the essential function of administering vaccinations. Since the plaintiff was an employee for years without having to administer any vaccinations as a pharmacist, it is important to understand that written job descriptions should be taken in totality in this case since the plaintiff was not a job applicant but a long standing employee with Rite Aid.

There was no evidence presented that the purpose for being a pharmacist was to administer vaccinations, particularly since at the time of the plaintiff’s termination, a Rite Aid executive testified that there were low immunization numbers in 2011. While he stated the public was not aware of the immunization program yet and it has since grown, the courts only base essential function analysis on the status of the function at the time of the employee’s termination. Past employees were also not required to administer vaccinations prior to 2011. After 2011, all Rite Aid pharmacists were mandated to administer vaccinations, which certainly weighed in the plaintiff’s favor.

It is telling that the Second Circuit only seemed to weigh two factors: the employer’s judgment and the 2011 revised pharmacist job description. Since no one factor is dispositive and taking the totality of circumstances in this case, it could reasonably be asked that if at the time of the plaintiff’s termination, administering vaccinations was such a small part of his job, as well as the plaintiff being a pharmacist at Rite Aid long before the revised job description, and the fact that past employees did not have to administer vaccinations, was administering vaccinations really an essential job function?

Reasonable Accommodation

The Second Circuit also analyzed the question of whether the defendant could have provided the plaintiff with a reasonable accommodation. The ADA stipulates that a reasonable accommodation can involve “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. §12111(9); see also Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 217 (2d Cir. 2001).

While “job restructuring” is not defined in the ADA, EEOC Guidelines under the ADA explain that “[a]n employer or other covered entity may restructure a job by reallocating or redistributing nonessential, marginal job functions.” 29 C.F.R. pt. 1630, App. §1630.2(o). However, EEOC regulations note that an employer “is not required to reallocate essential functions.” In this case, the plaintiff spent over 30 years as a pharmacist when administering vaccinations was not an essential job function. Furthermore, it could be argued at the time of the plaintiff’s termination, administering vaccinations was a nonessential, marginal job because even the defendant acknowledges that while they changed the pharmacist job description to add administering vaccinations in 2011, it was a marginal part of the job because the public was just becoming aware of the defendant’s vaccination program. If this were the case, the defendant could have reallocated the marginal functions of administering needles to other pharmacists as a possible job restructuring.

The Second Circuit dismissed the plaintiff’s argument that the defendant could have provided him with desensitization therapy. Desensitization therapy is defined as a type of therapy used to help individuals overcome phobias and other psychological disorders. The Second Circuit cited case law in Emerllahu v. Pactiv, No. 11-CV-6197 (MAT), 2013 WL 5876998, at *4 n.2 (W.D.N.Y. Oct. 30, 2013); Desmond v. Yale-New Haven Hospital, 738 F. Supp. 2d 331, 351 (D. Conn. 2010) that employers are not obligated to provide employees medical treatment for employees as a reasonable accommodation. While the District Court of Connecticut in Desmond agreed that an employer is not required to provide medical treatment, there is a case that indicates that medical treatment can be used as a possible reasonable accommodation.

In Dunlap v. Association of Bay Area Gov’ts, 996 F. Supp. 962 (N.D. Cal. 1998), a plaintiff sued an insurer after he was injured on the job for refusing to provide him a reasonable accommodation that required medical treatment, a recommended surgical procedure, and other necessary medical care under Title III of the ADA. Dunlap, 996 F. Supp. 962. Title III of the ADA applies to public accommodations and provides in relevant part that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns … or operates a place of public accommodation.” 42 U.S.C. §12182(a).

In Dunlap, the Northern District Court in California ruled that the defendant denying the plaintiff medical care as a reasonable accommodation could be a basis for a disability discrimination claim under the ADA. Furthermore, the court noted that often McDonnell-Douglas burden shifting is used for non-employment ADA discrimination cases such as Rothman v. Emory Univ., 123 F.3d 446, 451 (7th Cir. 1997) (applying McDonnell-Douglas burden-shifting in a case brought under Title III of the ADA).

Since McDonnell-Douglas can be used as a burden shifting standard in Title III ADA cases, why can’t a reasonable accommodation request of medical treatment be used in employment cases? If the defendant cannot prove that the medical treatment would be an undue hardship, it may be worth it to provide medical treatment to a valued employee who had been employed with the defendant for 34 years.

While I am not saying that the Second Circuit necessarily got its analysis totally wrong, it does not appear that they carefully weighed all of the factors in determining whether administering vaccinations was an essential job function and if there could have been a reasonable accommodation for the plaintiff. One thing is very certain: Twelve citizens in a box believed the plaintiff.

Can an employer terminate an employee that suffers from trypanophobia, which is defined as a fear of needles, without providing a reasonable accommodation to that employee?

Yes. At least, that is the way the U.S. Court of Appeals for the Second Circuit answered this question. In Stevens v. Rite Aid, No. 15-0277 (2d Cir. 2017), the Second Circuit reversed a district trial court verdict that found Christopher Stevens had been the victim of disability discrimination when his employer terminated him for refusing to administer vaccinations to customers because of his fear of needles. The Second Circuit decision overturned a jury verdict in favor of the plaintiff, awarding Stevens back-pay damages of $485,633, front-pay damages of $1,227,188 to cover a period of 4.75 years, and non-pecuniary damages of $900,000, later reduced to $125,000 when the plaintiff agreed to a remittitur. Judgment was entered on Jan. 27, 2015.

There are two questions that are central to this case: (1) whether administering vaccinations was an essential job function, and (2) whether the defendant could have provided Stevens with a reasonable accommodation. This article will explore these legal questions.

Essential Job Function

The Americans with Disabilities Act prohibits discrimination in employment against “a qualified individual on the basis of disability.” 42 U.S.C. §12112(a) . A qualified individual is defined as one who, “with or without a reasonable accommodation, can perform the essential functions of the job of the employment position that such individual holds or desires.” 42 U.S.C. 12111(8) ; see also Sista v. CDC Ixis N. Am. , 445 F.3d 161, 169 ( 2d Cir. 2006 ) (citation and internal quotation marks omitted). If an employee can perform the essential functions of the job, the employer cannot discriminate. However, if the employee has a disability that prevents them from carrying out the essential functions of the job, that employee is rendered unqualified under the ADA.

The Second Circuit ruled that because Rite Aid revised its job description for pharmacists in 2011 to require immunization certification and licensure, that administering vaccinations was an essential function of the plaintiff’s job. However, the Second Circuit is belied by a Rite Aid executive who testified at trial that at the time Stevens’s employment was terminated in 2011, “Rite Aid Pharmacists spent relatively little time performing customer immunizations when the new policy was first put into place … .” Stevens, 15-0277. Usually essential functions of the job are a common part of a ‘qualified individual’s’ employment in a particular position.

The Second Circuit has spoken definitively on distinguishing essential and non-essential job functions. The Second Circuit ruled that “essential functions are defined under EEOC regulations to mean the ‘fundamental duties’ to be performed in the position in question, but not functions that are merely ‘marginal.’” Shannon v. New York City Transit Auth. , 332 F.3d 95, 100 ( 2d Cir. 2003 ) (citing Stone v. City of Mt. Vernon , 118 F.3d 92, 97 ( 2d Cir. 1997 ) .

The Second Circuit weighs the following factors in determining an essential job function: (1) “the employers judgment, (2) written job descriptions, (3) the amount of time spent on the job performing the function, (4) the mention of the function in a collective bargaining agreement, (5) the work experience of past employees in the position, and (6) the work experience of current employees in similar positions.” McMillan v. City of New York , 711 F.3d 120, 126 ( 2d Cir. 2013 ) (citing Stone , 118 F.3d at 97). Courts are charged with conducting “a fact specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.” McMillan, 711 F.3d at 126.

Since the Second Circuit treats EEOC Guidelines as authoritative, the Guidelines for determining an essential job function are as follows: “A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform that particular function.” 29 C.F.R. §1630.2(n) .

Analyzing the case under these guidelines, it could be argued that at the time Stevens was terminated, the act of administering vaccinations was merely marginal. First, the plaintiff was employed at the defendant’s pharmacy for 34 years, during which period he performed the essential job functions of handling medications and counseling customers regarding their medications. Stevens, 15-0277. There was no evidence presented that the purpose for being a pharmacist was to administer vaccinations, particularly since at the time of the plaintiff’s termination, a Rite Aid executive testified that there were low immunization numbers in 2011. While he stated the public was not aware of the immunization program yet and it has since grown, the courts only base essential function analysis on the status of the function at the time of the employee’s termination.

While it could be argued that there may be a limited number of employees available among whom this job can be distributed, it certainly cannot be argued that administering vaccinations is so highly specialized that the plaintiff was hired for his expertise in this position. The plaintiff in this case was hired over 30 years before the defendant’s vaccination policy ever became a part of the job functions of being a pharmacist. Furthermore, all Rite Aid pharmacists had to complete a training to administer vaccinations, meaning that it is likely that none of these pharmacists were hired for their expertise in administering vaccinations. This is especially true because Rite Aid offered training for pharmacists from 2011 to administer vaccinations.

In weighing the Second Circuit factors in determining an essential job function, there is a great deal of deference given to the employer’s judgment. The Second Circuit notes that courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” Shannon v. New York City Transit Authority , 332 F.3d 95, 100 ( 2d Cir. 2003 ) (citation and internal quotation marks omitted); see also, e.g., 42 U.S.C. §12111(8) (“[C]onsiderations shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, the description shall be considered evidence of the essential functions of the job.”). However, the Second Circuit is also clear that while employer’s judgment and written description of the job are important factors “no one listed factor will be dispositive.” Stone, 118 F.3d at 97.

In Stevens, it appears that the Second Circuit made the employer’s judgment factor dispositive in determining what functions were essential for the job of a pharmacist. Certainly after 2011, administering injections became a part of the written job description of being a Rite Aid pharmacist. Id. However, it could be instructive to examine past written job descriptions as well in this case. The jury may have weighed the fact that when the plaintiff applied to be a pharmacist at Rite Aid, administering vaccinations was not an enumerated job function. It may be an unreasonable exercise to only examine Rite Aid’s job description from 2011, a description put into place well after the plaintiff was hired.

At the time Rite Aid begin to administer its vaccination program, Stevens was not a Rite Aid applicant. If Stevens was applying for the job in 2011, then it would be reasonable to argue that Stevens was well aware that a condition of being hired was the ability to administer vaccinations and that given his fear of needles, it would make it difficult to perform the essential function of administering vaccinations. Since the plaintiff was an employee for years without having to administer any vaccinations as a pharmacist, it is important to understand that written job descriptions should be taken in totality in this case since the plaintiff was not a job applicant but a long standing employee with Rite Aid.

There was no evidence presented that the purpose for being a pharmacist was to administer vaccinations, particularly since at the time of the plaintiff’s termination, a Rite Aid executive testified that there were low immunization numbers in 2011. While he stated the public was not aware of the immunization program yet and it has since grown, the courts only base essential function analysis on the status of the function at the time of the employee’s termination. Past employees were also not required to administer vaccinations prior to 2011. After 2011, all Rite Aid pharmacists were mandated to administer vaccinations, which certainly weighed in the plaintiff’s favor.

It is telling that the Second Circuit only seemed to weigh two factors: the employer’s judgment and the 2011 revised pharmacist job description. Since no one factor is dispositive and taking the totality of circumstances in this case, it could reasonably be asked that if at the time of the plaintiff’s termination, administering vaccinations was such a small part of his job, as well as the plaintiff being a pharmacist at Rite Aid long before the revised job description, and the fact that past employees did not have to administer vaccinations, was administering vaccinations really an essential job function?

Reasonable Accommodation

The Second Circuit also analyzed the question of whether the defendant could have provided the plaintiff with a reasonable accommodation. The ADA stipulates that a reasonable accommodation can involve “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. §12111(9) ; see also Lovejoy-Wilson v. NOCO Motor Fuel , 263 F.3d 208, 217 ( 2d Cir. 2001 ) .

While “job restructuring” is not defined in the ADA, EEOC Guidelines under the ADA explain that “[a]n employer or other covered entity may restructure a job by reallocating or redistributing nonessential, marginal job functions.” 29 C.F.R. pt. 1630, App. §1630.2(o). However, EEOC regulations note that an employer “is not required to reallocate essential functions.” In this case, the plaintiff spent over 30 years as a pharmacist when administering vaccinations was not an essential job function. Furthermore, it could be argued at the time of the plaintiff’s termination, administering vaccinations was a nonessential, marginal job because even the defendant acknowledges that while they changed the pharmacist job description to add administering vaccinations in 2011, it was a marginal part of the job because the public was just becoming aware of the defendant’s vaccination program. If this were the case, the defendant could have reallocated the marginal functions of administering needles to other pharmacists as a possible job restructuring.

The Second Circuit dismissed the plaintiff’s argument that the defendant could have provided him with desensitization therapy. Desensitization therapy is defined as a type of therapy used to help individuals overcome phobias and other psychological disorders. The Second Circuit cited case law in Emerllahu v. Pactiv, No. 11-CV-6197 (MAT), 2013 WL 5876998, at *4 n.2 (W.D.N.Y. Oct. 30, 2013); Desmond v. Yale-New Haven Hospital , 738 F. Supp. 2d 331, 351 ( D. Conn. 2010 ) that employers are not obligated to provide employees medical treatment for employees as a reasonable accommodation. While the District Court of Connecticut in Desmond agreed that an employer is not required to provide medical treatment, there is a case that indicates that medical treatment can be used as a possible reasonable accommodation.

In Dunlap v. Association of Bay Area Gov’ts , 996 F. Supp. 962 ( N.D. Cal. 1998 ) , a plaintiff sued an insurer after he was injured on the job for refusing to provide him a reasonable accommodation that required medical treatment, a recommended surgical procedure, and other necessary medical care under Title III of the ADA. Dunlap, 996 F. Supp. 962. Title III of the ADA applies to public accommodations and provides in relevant part that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns … or operates a place of public accommodation.” 42 U.S.C. §12182(a) .

In Dunlap, the Northern District Court in California ruled that the defendant denying the plaintiff medical care as a reasonable accommodation could be a basis for a disability discrimination claim under the ADA. Furthermore, the court noted that often McDonnell-Douglas burden shifting is used for non-employment ADA discrimination cases such as Rothman v. Emory Univ. , 123 F.3d 446, 451 ( 7th Cir. 1997 ) (applying McDonnell-Douglas burden-shifting in a case brought under Title III of the ADA).

Since McDonnell-Douglas can be used as a burden shifting standard in Title III ADA cases, why can’t a reasonable accommodation request of medical treatment be used in employment cases? If the defendant cannot prove that the medical treatment would be an undue hardship, it may be worth it to provide medical treatment to a valued employee who had been employed with the defendant for 34 years.

While I am not saying that the Second Circuit necessarily got its analysis totally wrong, it does not appear that they carefully weighed all of the factors in determining whether administering vaccinations was an essential job function and if there could have been a reasonable accommodation for the plaintiff. One thing is very certain: Twelve citizens in a box believed the plaintiff.