A health system that required an employee to take a flu vaccine as a condition of continued employment did not violate the Americans with Disabilities Act despite the worker suffering a bad vaccine reaction, according to a federal appeals court ruling in December.
Jasmine Norman sued her employer, NYU Langone Health System, for failing to reasonably accommodate her disability — an allergy to flu vaccines. She then claimed the health system retaliated against her by suspending and then threatening to terminate her due to her request for a reasonable accommodation.
Norman worked for the health system for 10 years in administration. Since 2012, Norman requested — and was granted — an exemption from taking the flu vaccine because of previous negative reactions from taking it.
In 2017, NYU revised its policy to require medical exemptions from taking the vaccine. Her doctor completed medical paperwork indicating that Norman experienced a negative reaction to the flu vaccine, including heart palpations and shortness of breath. The doctor’s certification confirmed the reaction lasted three days, but Norman acknowledged later that it lasted 15 to 20 minutes.
The health center’s review board evaluated the employee’s exemption request and determined that the current flu vaccine was not manufactured using egg-based manufacturing.
The allergist working with the health system recommended a skin test to determine if the employee would experience a reaction. The employee initially declined the test, and thus her exemption was denied.
After Norman was suspended and threatened with termination for failing to comply with the flu vaccine policy, she agreed to be tested by the allergist. The allergist determined that Norman would experience no negative reaction, and administered the flu vaccine to Norman.
Shortly thereafter, the employee experienced shortness of breath and heart palpitations, similar to her reactions two previous times. She was treated with Albuterol and an EpiPen injection. The employee was referred to the emergency department, where hospital notes indicate that the employee should “not receive any formulation of the flu vaccination indefinitely.”
While the employee claimed that the health system failed to accommodate her disability, in a Summary Order (which means it doesn’t set precedent), the 2nd U.S. Circuit Court of Appeals concluded that the health system did provide the employee a reasonable accommodation.
The appeals court concluded that the health system accommodated Norman’s purported allergy to flu vaccines by referring her to an allergist who conducted a skin test to determine if it was safe for the employee to receive the vaccine. Only after the allergist’s test showed that the employee tested negative for allergies to the vaccine did she receive the vaccine.
“The fact that Norman may have later suffered an adverse reaction to the [flu] vaccine, notwithstanding that her [flu] skin test was negative, does not undermine the reasonableness of the accommodation offered by [the employer] at the time the decision was made,” the court said. “Given the undisputed information that NYU Langone had available at the time it required Norman to receive the [flu] vaccine, no rational jury could find that the accommodation was unreasonable.”
The court also rejected the employee’s proposed accommodation in the alternative to receiving the vaccine — wearing a mask.
“We find similarly unpersuasive Norman’s argument that her willingness to wear a mask creates a disputed issue of fact as to the reasonableness of the accommodation. We have emphasized that, 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,’” the court said.
The court also found the employee’s claims of retaliation due to being placed on leave and threatened with termination unpersuasive. The employer had in place a policy of terminating employees who lacked an exemption and refused to receive the flu vaccine, and Norman did not receive any differential treatment. In addition, shortly after she received the vaccine, the employee received a promotion.
The court chose to punt the issue of whether the employee’s medical condition constituted a disability under the ADA.
This case seems particularly relevant given the COVID-19 vaccine mandates and the many requests for exemptions.
In this case, the employer engaged experts and took the employee’s claims of allergies seriously.
Employers should review all medical documentation for any employees seeking an exemption from vaccine mandates and then engage in the good faith interactive process to determine what reasonable accommodations can be made.
Employers should take all requests seriously and review them on a case-by-case basis. ADA accommodations are not one-size-fits-all.