2d Cir: Pharmacists must inject customers. Oh, word?

Image Credit: Pixabay

No, the Second Circuit Court of Appeals didn’t say, “Oh, word?” But, it did just toss a $2,600,000 jury award in favor of a pharmacist in an Americans With Disabilities Act case.

From $2.6M to zero

That’s zero point zero.

In Stevens v. Rite Aid Corp. (opinion here), a pharmacist with a fear of needles, also known as trypanophobia, asked Rite Aid not to require him to inject Rite Aid customers. The plaintiff, a 34-year employee of the company, hadn’t encountered a problem until 2011. That was when Rite Aid, and other large pharmacy chains, started requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the healthcare market. Indeed, in April 2011, Rite Aid revised its job description to require pharmacists to hold a valid immunization certificate and included a reference to immunizations in the list of “essential duties and responsibilities” for pharmacists.

In August, Rite Aid officials told the plaintiff that the ADA did not apply to trypanophobia, that Rite Aid was not required to accommodate him, and that Stevens would lose his job unless he successfully completed immunization training. Ultimately, Rite Aid terminated the plaintiff for refusing to perform customer immunizations, which were an essential function of his job.

So, the plaintiff sued and prevailed at trial. But, the appeal didn’t go as well for him. Actually, it went the opposite of well.

What makes a job function essential?

Under the ADA, an employer is NOT required to modify or reallocate essential job functions to accommodate an employee with a disability. How are essential job functions determined, you ask?

Pay attention now.

In evaluating whether a particular job function is “essential,” this Second Circuit considers the following factors:

  • the employer’s judgment,
  • written job descriptions,
  • the amount of time spent on the job performing the function,
  • the mention of the function in a collective bargaining agreement,
  • the work experience of past employees in the position, and
  • the work experience of current employees in similar positions.

Bullets number one and two are key! Right, Second Circuit Court of Appeals? Break ’em off some:

The evidence established that the company carried out this policy by revising its job description for pharmacists to require immunization certification and licensure, as necessary depending on the state where the pharmacy is located, and including immunizations in the list of “essential duties and responsibilities” for Rite Aid pharmacists. Rite Aid’s in-house counsel testified that Rite Aid terminated another pharmacist with needle phobia because, like Stevens, he failed to undergo Rite Aid’s immunization training program, further demonstrating that the company deemed administering immunizations to be an essential function of its pharmacists.

After all, it’s your company. You get to decide how jobs should be performed.

Still, the plaintiff argued that injections weren’t essential to his job because the revised job description did not specifically state that pharmacists were required to administer immunizations by injection. And the Second Circuit was like…

But, how about some other accommodations?

  • Maybe, paying for desensitization therapy. No, employers aren’t required to pay for medical treatment.
  • How about a transfer to a pharmacy tech position? Well, Rite Aid offered it. But, the plaintiff failed to produce any evidence that he requested, considered, or was open to a position as a pharmacy technician.
  • Then, what if Rite Aid hired a nurse to handle the injections for the plaintiff? That won’t work because it involves reallocating essential job functions.
  • Possibly a transfer to a “dual-pharmacist” location. Sorry, no vacant positions available.

Whoop! Whoop! Print this jawn out and share it with your folks in HR as a great primer on: (1) how to set essential job functions; and (2) considerations for reasonable accommodations.

 

 

Updated: