By Mark F. Kluger and William H. Healey
This past Tuesday, a federal appeals court taught employers an important lesson and it was not just the meaning of trypanophobia. The lesson was about essential job functions and the Americans with Disabilities Act (“ADA”)–and for those few of you who do not know, your vocabulary word for the day means fear of needles. It was that fear of needles that resulted in the termination of a pharmacist who had worked for Rite Aid for 34 years.
In 2011, Rite Aid decided to offer immunizations to customers that would be administered by its pharmacists. Most states required the pharmacists to be trained and earn an immunization certificate. Rite Aid updated the job description for the position and made sure to define the new responsibility as an “essential function” of the job of pharmacist. The company then notified all of its pharmacists. Unfortunately for one upstate New York pharmacist, he was trypanophobic (which you might think means only that he had a fear of being on the receiving end, but apparently this pharmacist also feared being on the giving end). The pharmacist wrote to a supervisor that needles make him experience “lightheadedness, paleness and a feeling that I might faint.” Although Rite Aid was apparently willing to expose customers to a pharmacist who looked pale, one with a needle who might feel lightheaded – or could even faint – was just too much.
Rite Aid’s Human Resources Manager did a smart (and legally appropriate) thing. He wrote the employee a note with a list of questions for his doctor to answer regarding the manner in which the phobia would manifest itself and whether there were any accommodations that might allow him to perform the new essential job function. That is the “interactive process” that the ADA requires. The doctor wrote that the pharmacist would likely faint if he had to give an injection. In response, Rite Aid terminated him and he sued claiming disability discrimination under the ADA. A jury later awarded the pharmacist over $2.5 million.
In reversing the outcome on March 21, 2017, the appellate court focused on whether Rite Aid pharmacists giving injections is an “essential function” of their job. The court said that the relevant factors include, among others, the employer’s judgment, the written job description and the amount of time the employee spends performing that duty relative to the others. The court concluded that Rite Aid’s judgment as to the importance of the new service and the clarity of its job description made the pharmacist’s ability to do use a needle an essential job function.
The next issue was whether Rite Aid had to accommodate the pharmacist’s disability. The court concluded that the employer asked the right questions and the employee did not have adequate answers. When HR requested the pharmacist’s suggested accommodations, he proposed only that he work in a store in which there was more than one pharmacist on duty or that Rite Aid hire a nurse to work with him. The court ruled that “reasonable accommodation” does not require the elimination of an essential job function and that those suggestions involve other employees performing the duties rather than providing a way for the disabled employee to do so. The ADA, in other words, does not require employers to have two employees available to do the job of one.
This case underscores the need to inject all essential job functions into job descriptions and to always take a shot at engaging in the interactive process when an employee or applicant indicates an inability to perform one or more of those duties.