No Accommodation for Pharmacist’s Fear of Needles

The Americans with Disabilities Act of 1990 (ADA) prohibits, among other things, discrimination by most employers against a qualified employee or applicant with a disability. When President George H. W. Bush signed the legislation, he acknowledged businesses’ concerns that the ADA might end up costing them money. But he reminded them of the importance of enabling people to work, saying that the legislation was meant to benefit “a tremendous pool of people who will bring to jobs diversity, loyalty, proven low turnover rate, and only one request: the chance to prove themselves.”

One issue that employers face is modifying a job so that it can be performed by a qualified employee or applicant who has a disability. To be considered “qualified,” an individual must be able to perform tasks that are essential to the job, with or without reasonable accommodation. An employee who can’t perform the essential functions of the job isn’t considered to be qualified for the job, and therefore an employer doesn’t violate the ADA by not hiring or promoting that individual.

It’s the employer’s responsibility to set out each essential job function. According to the Equal Employment Opportunity Commission, employers “should carefully examine each job to determine which functions or tasks are essential to performance.”

In March 2017 the Second Circuit Court of Appeals determined that Rite Aid didn’t commit disability discrimination when it fired Christopher Stevens, a pharmacist who suffered from trypanophobia (fear of needles) and couldn’t give injections to customers. Before his termination in 2011, Stevens had worked for Rite Aid and its predecessors for 34 years without having to give injections. But in 2011, Rite Aid and other pharmacy chains started requiring pharmacists to perform immunizations to fill an unmet need for vaccinations. Rite Aid wanted customers to be able to come into a store at any time and receive an immunization.

A jury initially awarded Stevens almost $2 million, concluding that Rite Aid should have accommodated his needle phobia. The Second Circuit Court of Appeals overturned the jury’s award because Rite Aid proved that being able to give injections was an essential part of Stevens’ job.  

Rite Aid did several things right in this situation, such as clearly defining the essential job functions of a Rite Aid pharmacist and offering Stevens an accommodation.

Essential Job Function

Rite Aid offered uncontradicted testimony that it made a business decision in 2011 to require pharmacists to perform immunizations. It revised its pharmacist job description to include immunizations in the list of “essential duties and responsibilities.” It also fired another pharmacist with needle phobia who refused to go through immunization training, showing that it was applying its policy consistently. As we noted in the context of an age discrimination case, when a company doesn’t follow through on its own policies, its actions can look like workplace discrimination.

We’ve written before about how an employer who fails to clearly document an essential job function can be held liable for failing to accommodate an employee’s disability. But in this case, Rite Aid’s documentation caused the Court to conclude that Stevens was unable to perform an essential function of his job as a pharmacist.

As attorney Jonathan A. Segal of Duane Morris writes, “Job descriptions are one factor that can support an employer’s position that a function is essential.”

Reasonable Accommodation

Rite Aid offered Stevens a position as a pharmacy technician, which wouldn’t have required giving shots. But that position paid much less than a pharmacist position. Stevens claimed that Rite Aid should have offered other accommodations, such as hiring a nurse to give injections for him or assigning him to a pharmacy with another pharmacist. But the Court said that those steps would have involved other employees performing Stevens’ essential job function; that’s not the kind of accommodation that employers are required to make.

As we pointed out in another blog post, for most employers, the cost of a workplace accommodation is $500 or less. And as this case shows, the ADA didn’t require Rite Aid to remove an essential job function from its job description.

The Court in this case noted that in evaluating whether a particular job function is “essential,” it considers:

•         The employer’s judgment
•         Written job descriptions
•         The amount of time spent performing the function
•         The mention of the function in a collective bargaining agreement
•         The work experience of past and current employees in that position
  .

Even employers outside the Second Circuit would do well to consider these issues when they’re deciding on essential job functions, because these are the kind of details that a court will focus on when it’s trying to decide if it’s looking at a case of disability discrimination. In addition, looking at these points can help employers come up with job descriptions and essential job functions that are accurate and fair.

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