Hunton Employment & Labor Perspectives

The Second Circuit recently held that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations.  The Court’s decision overturned a jury verdict of $2.6 million in the pharmacist’s favor and reminds employers what it takes to show that a given function is “essential” and what accommodations are reasonable.  The former pharmacist had claimed Rite-Aid illegally discharged and retaliated against him, and refused to accommodate his disability—trypanophobia, or needle phobia—under the Americans with Disabilities Act and similar state law.

This case serves as a reminder to employers that they are not obligated to eliminate or reallocate essential job functions, nor must they provide medical treatment as an accommodation.  They should, however, consider offering to move disabled workers to vacant positions for which they can perform essential job functions.  Employers should also ensure their job descriptions and business conduct support that job functions are, in fact, essential.

The Second Circuit based its finding that administering immunizations was an essential job function on several facts:

• Rite-Aid personnel testified without contradiction that the company made a business decision to require pharmacists to perform immunizations;
• Rite-Aid carried out that policy by revising the job description to list performing immunizations as an essential duty and responsibility and requiring pharmacists obtain immunization certification and licensure (depending on state requirements); and
• Rite-Aid terminated another pharmacist with trypanophobia for failing to undergo Rite-Aid’s immunization training program.

In finding that no reasonable accommodation existed at the time of the pharmacist’s termination, the Court found that the company:

• had requested that the pharmacist’s physician provide information about his phobia, including whether there were any accommodations that would enable him to perform injections, and the physician said that there were not;
• had offered the pharmacist another position that would not require him to administer immunizations;
• was not obligated to offer medical treatment as an accommodation;
• was not obligated to hire a nurse to give immunizations;
• was not obligated to assign the pharmacist to a location with two pharmacists on staff, the second of which could perform immunizations (and, in any event, he had not shown that such a position was vacant at the time of his termination).

The Court reiterated that, unless an employee can show that a reasonable accommodation existed, he cannot recover based on his employer’s failure to engage in an interactive process.  Because the pharmacist had failed to identify an available accommodation, it was irrelevant whether Rite-Aid had engaged in the interactive process.