Be Careful With That! – Second Circuit Dismisses Failure to Accommodate Claim Brought by “Needle Phobic” Pharmacist
On March 21, 2017, the Second Circuit affirmed the dismissal of a former Rite Aid pharmacist’s claim against Rite Aid for refusing to accommodate his “needle phobia.” In 2011, Rite Aid altered the job description for its pharmacists to include immunization certification as an “essential duty and responsibility.” Rite Aid altered the job description to enable customers “to come into Rite Aid any time the pharmacy was open . . . and receive an immunization.”
Immediately after Rite Aid revised the pharmacist job description, a Rite Aid pharmacist requested an exemption because he suffers from trypanophobia (a fear of needles). At that time, the pharmacist had been employed as a pharmacist with Rite Aid and its predecessors for almost 35 years. He subsequently presented Rite Aid with a doctor’s note stating that he is “needle phobic and cannot administer immunization by injection.”
Rite Aid subsequently reached out to the pharmacist and his doctor in order to determine whether there were any accommodations that would allow him to become immunization certified. In response, the pharmacist’s doctor sent Rite Aid a note stating that the pharmacist could not safely administer immunizations. After the pharmacist informed Rite Aid that he was unable to become immunization certified, Rite Aid terminated him due to his inability to perform an essential function of his position.
The pharmacist subsequently filed a lawsuit in the United States District Court for the Northern District of New York alleging that Rite Aid retaliated against him, wrongfully terminated him, and failed to accommodate his disability in violation of the Americans with Disabilities Act (“ADA”). The jury ruled in favor of the pharmacist and awarded him over $2,500,000. The District Court then granted Rite Aid’s post trial motion to dismiss the pharmacist’s failure to accommodate claim, but denied Rite Aid’s motion for judgment as a matter of law with respect to the pharmacist’s wrongful termination and retaliation claims. The District Court also ordered a remittitur, reducing the emotional distress portion of the jury award from $900,000 to $125,000. Both the pharmacist and Rite Aid appealed to the Second Circuit.
On appeal, the Second Circuit affirmed the dismissal of the pharmacist’s failure to accommodate claim and ruled that Rite Aid was entitled to judgment as a matter of law on the remaining claims. The Second Circuit was deferential to Rite Aid’s determination that immunization certification is an essential function of its pharmacist position. The memorandum opinion provided limited analysis, stating only that Rite Aid made a business decision that was uniformly implemented and noting that Rite Aid had previously terminated another pharmacist for similar reasons. The Second Circuit rejected the pharmacist’s argument that immunizations cannot be an “essential function” because pharmacists spend little time administering them.
Once it determined that immunization certification was an essential function, the Second Circuit opined that the pharmacist failed to demonstrate the existence of a reasonable accommodation at the time of his termination. Insofar as the pharmacist asserted that Rite Aid could have provided him needle desensitization therapy, the Second Circuit noted the lack of legal authority suggesting that an employer is obligated to offer employees medical treatment as a reasonable accommodation under the ADA. The Second Circuit also rejected the argument that the pharmacist could have been transferred to a pharmacy technician position since Rite Aid had previously offered him this opportunity and he gave no indication of his willingness to accept the offer. Lastly, the Court rebuffed the pharmacist’s contention that Rite Aid could have either hired a nurse to administer immunizations or assigned him to a dual pharmacist location because reassigning one employee’s essential functions to another employee is not a reasonable accommodation under the ADA.
Ultimately, whether a job duty constitutes an essential function requires an individualized analysis. Accordingly, employers should consult with an experienced employment attorney to determine whether certain duties are likely to be considered essential functions of a position.