Blog Labor & Employment Report
Fiona W. Ong, Shawe Rosenthal LLP
Lexology, October 27 2023
An employee who refused to be vaccinated against COVID-19 argued that his employer violated the Americans with Disabilities Act (ADA) by regarding him as having a disability. His claim, however, was rejected by the U.S. Court of Appeals for the Fifth Circuit.
What the ADA Requires. The ADA prohibits discrimination against a qualified individuals with a disability (meaning a mental or physical impairment that substantially limits a major life activity) and requires employers, absent an undue hardship, to provide reasonable accommodations to enable such individuals to perform their essential job functions and enjoy equal privileges and benefits of employment. The definition of disability includes not only those with current disabilities, but also those who have a record of one, or who are regarded as having one.
Background of the Case. In Chancey v. BASF, the employer implemented COVID protocols in compliance with federal guidance, including inquiries about vaccine status, masking requirements, social distancing, handwashing, and temperature checks. The employee refused to comply although he wanted to continue to work onsite. While the employer investigated his concerns about the protocols, he was separated from other employees. Following the investigation, the employer required the unvaccinated employee to remain segregated in a part of the workspace and undergo weekly COVID testing at his own expense, among other things. He then sued the employer, alleging that it regarded him as having impaired immune and respiratory systems in violation of the ADA.
The Fifth Circuit’s Decision. The Fifth Circuit held, however, that “merely being at risk of developing a condition is insufficient to state a disability-discrimination claim under the ADA.” It noted that at least three of its sister Circuits – the Sixth, Seventh and Eleventh – had come to the same conclusion. We further note that, also this month, the U.S. District Court for Maryland similarly rejected this “regarded as” argument in Foshee v. AstraZeneca Pharmaceuticals, LP, finding that the employees did not show that they were regarded as having any physical or mental impairment that limits a major life activity. The Maryland federal court further observed that any limitations on the activities of unvaccinated individuals “are caused by societal rules, not by the vaccination status of those subject to those rules.”
Lessons for Employers. As many COVID-19 accommodations lawsuits are now being litigated, this case provides some comfort to employers that employees who simply choose to remain unvaccinated are not protected by the ADA. Of course, if the employee is unable to be vaccinated due to some underlying medical condition, that condition may constitute a disability that requires accommodation.
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