This employer provided a flu shot accommodation that DID NOT work. And it still WON the lawsuit. HOW?!?


Here’s a reminder that the duty to accommodate an employee under the Americans with Disabilities Act neither requires providing the employee’s preferred accommodation nor an accommodation that is 100% successful.

Instead, it’s about doing what’s reasonable based on the information available at the time.

I’ll explain.

Here is a recent Second Circuit case about an employee who had a history of bad reactions to flu vaccines. Her employer traditionally relaxed its vaccination requirement for her. But, eventually, it changed its rules for everyone to require a written exemption request from employees seeking one. The employee submitted a written request, and the employer referred her to an allergist. The employee preferred to wear a mask. But the allergist carefully crafted a medical protocol for the employee that indicated that an alternative vaccine would work.

Except it didn’t. That is, shortly after the employee received the vaccine, she experienced shortness of breath and heart palpitations and (just as she had with other forms of the flu vaccine) and was admitted to the Emergency Department.

After she got out — not immediately, but soon after that — she lawyered up and sued for violations of the ADA. And eventually, she lost.

But why?

The Second Circuit Court of Appeals concluded that the employer’s individualized examination and administration of the alternative flu vaccine “was an appropriate alternative to the traditional flu vaccine” given the employer’s testing and knowledge of the plaintiff’s medical history.

But the accommodation didn’t work. Doesn’t that count for something?

Not really. Although the employee suffered an adverse reaction to the alternative vaccine, notwithstanding a negative skin test for it, it did not undermine the reasonableness of the employer’s accommodation when it decided to accommodate her.

“In other words,” reasoned the court, “given the undisputed information that [the employer] had available at the time it required [the employee] to receive the [alternative] vaccine, no rational jury could find that the accommodation was unreasonable.”

How about the employer not letting the employee mask up instead?

The court found this argument “unpersuasive” because “although the employer must provide a reasonable accommodation, it is not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee.”

A few more employer takeaways.

As a practical matter, I generally advise employers to acquiesce when an employee seeking an accommodation for a disability requests something that seems reasonable. My thinking is that if the accommodation fails, then it’s not the employer’s fault.

Sometimes, however — especially when workplace safety is a factor — you end up with a situation like this where vaccination is preferable to masking. In those situations, it’s ok to stick to insist on a reasonable accommodation — even when it’s not the employee’s first choice. Just be prepared for the potential repercussions (and lawsuit) if the accommodation does not work.

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