Over the weekend, I read a recent federal appellate court opinion about a pharmacist who alleged that his former employer discriminated against him by failing to accommodate his fear of needles.
The Americans with Disabilities Act (and similar state laws) require that an employer reasonably accommodate a qualified individual with a disability where doing so will enable that person to perform the essential functions of the job unless doing so would create undue hardship for the business.
While there is no exhaustive list of reasonable accommodations, relaxing a requirement to perform essential job functions is not one of them.
Now, if a pharmacist asking for an accommodation to avoid administering immunizations sounds familiar to you, it should. I blogged about a similar case two years ago. In that case, the employer testified at trial that it had made a business decision to require all pharmacists to administer immunizations so that customers could receive vaccinations any time the pharmacy was open. The employer also revised its job description to require certification and to include immunization in the list of “essential duties and responsibilities. Plus, the employer fired another pharmacist for not complying with the certification program.
This more recent case I read over the weekend also arose out of the Second Circuit. So, it should have been a slam dunk for the employer, right?
That’s because the plaintiff furnished a letter from his employer that states that administering immunizations was “not considered to be an essential function of [his] position.” Plus, the plaintiff alleged that his employer had not changed his job description after he received the letter.
Well, you and I may reasonably assume that a pharmacist must give flu shots.
But, if that’s not what’s in the job description and the company confirms in writing administering immunizations is not an essential job function, then maybe giving flu shots isn’t all that necessary after all. And that’s why the Second Circuit Court of Appeals distinguished this case from the one a few years ago and will allow the plaintiff to continue to pursue his claims.
This decision also serves as a reminder for employers that not only should job descriptions accurately reflect and clarify the essential functions of the job, but the company needs to be consistent in the manner in which it applies those job descriptions. For example, notifying the employee of a change in the job description may be enough to nullify whatever responsibilities the employer previously deemed essential in the job description.