8th Circuit Rules Vaccination Requirement for Employment is Lawful
The 8th Circuit ruled on December 7, 2018 in Hustvet v. Allina Health System, that an employee who was terminated for failing to receive a vaccination for Rubella was not discriminated or retaliated against under the Americans with Disabilities Act, as amended (“ADA”).
Janice Hustvet was an employee at the Courage Center (the “Center”) working with clients as an Independent Living Skills Specialist. In 2013, an entity of Allina Health System (“Allina”) merged with the Courage Center. After the merger, Courage Center employees were to become Allina employees if they met certain conditions—including a pre-placement health assessment screen to track for immunity to certain communicable diseases, like Rubella. Hustvet was not immunized against Rubella and refused to receive the Measles, Mumps, Rubella vaccine (“MMR vaccine”) as directed. Hustvet stated that she had chemical sensitivities and allergies and needed to limit her exposure. Allina later terminated Hustvet’s employment for failure to comply with immunity requirements. Hustvet then sued Allina for unlawful inquiry, discrimination, and retaliation.
Under the ADA, an employer may require medical examinations when the examination is job-related and consistent with business necessity. Allina’s health screen tested for immunity to communicable diseases, including Rubella, that could potentially put both clients and employees at risk of infection. The 8th Circuit found that requiring those employees with client contact to undergo the health screen was job-related and consistent with business necessity because it reduced the risk of spreading an infectious disease. As such, it was not an unlawful examination.
A threshold question in a failure to accommodate claim is whether the plaintiff is disabled within the meaning of the ADA. Hustvet argued that her chemical sensitivities and allergies substantially or materially limited her ability to perform major life activities and was thus a disability. However, the 8th Circuit concluded that there was insufficient evidence of such limitation. For example, Hustvet had never been hospitalized for an allergic or chemical reaction, had never seen an allergy specialist, was never prescribed an EpiPen, and never sought significant medical attention for her chemical sensitivity. In short, Hustvet suffered from “garden-variety allergies” that only had a moderate impact on her daily life which is insufficient to establish disability within the meaning of the ADA.
Hustvet also presented a retaliation claim which ultimately failed because she was unable to show that Allina’s non-retaliatory reason for termination was a mere pretext for discrimination. Namely, Allina terminated Hustvet because in her position as an Independent Living Skills Specialist, she was required to work with patients who were potentially vulnerable to disease. By refusing to become immunized, she would be a risk for infection.
Although the vaccination requirement in this case did not result in an ADA violation, it is important to note that ADA cases vary widely depending on the circumstances presented. Further, claims against an employer for vaccination requirements are not limited to discrimination/ADA claims. Claims may also be raised under other labor and employment laws. For example, in Virginia Mason Hosp. v. Washington State Nurses Ass’n, the Ninth Circuit upheld an arbitrator’s decision that Virginia Mason Hospital had violated a collective bargaining agreement by imposing a mandatory flu vaccination requirement on all nurses without first negotiating such a requirement with the nurse’s union. Thus, the vaccine requirement was unenforceable.
In today’s world, employee vaccinations are important considerations for workplace safety. This is especially so in the health care context. However, mandatory vaccinations also raise potential concerns under labor and employment laws. As such, employers are encouraged to consult with an experienced employment attorney at Mesch Clark Rothschild to discuss lawful employment practices.