The Eighth Circuit Court of Appeals just offered Minnesota health care employers a powerful prescription against employees who refuse to comply with policies requiring immunization against communicable diseases.
Janice Hustvet worked as an Independent Living Skills Specialist, a role with direct interaction with clients who were treated as if they had “compromised” or “fragile” immune systems. In 2013, Hustvet’s former employer merged with Allina Health System (Allina). As a result, Hustvet and others were to become Allina employees but needed to successfully complete health assessments before being placed into their positions.
During Hustvet’s assessment, Allina learned that she was not immunized for rubella. Allina informed Hustvet that she would need to develop immunity to rubella by receiving one dose of a Measles, Mumps, Rubella vaccine (MMR vaccine).
Vaccination is a Sticking Point for Employee
Hustvet refused the MMR vaccine, stating that her “health is of the utmost concern” and that she had “several cases of mumps and measles, the MM part of the MMR” in the past. Therefore, she needed to limit her “exposures.” Since a vaccine that only covered rubella was not available, Hustvet’s refusal to become immunized was recorded as a voluntary resignation from her job.
Hustvet sued Allina under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) alleging that the initial medical examination was unlawful. Further, she alleged disability discrimination for failure to accommodate her, and retaliation for her opposition to an unlawful immunization policy. The lower court dismissed her claims on summary judgement (early dismissal) and Hustvet appealed to the Eighth Circuit Court of Appeals, but her appeal was denied on all counts.
In regard to Hustvet’s claim that the exam was not lawfully permitted, the appeals court noted that the ADA allows employers to require medical examinations for current employees if the examination is “job-related and consistent with business necessity.” Siding with Allina on this issue, the court explained that the fundamental purpose of the screening was to make sure that employees who might come into contact with clients:
- were immune to communicable diseases;
- did not have communicable diseases that could be spread to clients; and
- could wear a respirator in the event of a disease outbreak
These were all necessary to the safe and effective operation of Allina’s business.
Alternatively, the court observed that the ADA and the MHRA permit employers to conduct medical inquiries for prospective employees after a conditional job offer has been issued. Having just received an offer from Allina following the merger, Hustvet was essentially a new employee subject to medical testing under these circumstances.
Court Injects Common Sense into Accommodation and Retaliation Claims
Turning to Hustvet’s failure to accommodate claim, the Court concluded that she had not proved that she suffered from a disability so no accommodation was required. While Hustvet argued that her chemical sensitivities or allergies to the MMR vaccine was a bona fide disability, the Court determined that she:
has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen. Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”
As a result, Hustvet could not establish a disability for which accommodation was needed.
Finally, the Court ruled that Hustvet was fired due to her failure to comply with Allina’s immunization policy. Since that policy was lawful, her opposition to it was not protected.
This is a critical victory for Minnesota’s health care employers who have determined that employees need to be tested for and immunized against communicable diseases. The Eighth Circuit has made it clear that a health care employer has a legitimate business need to test and immunize, and employees will have to argue something far more compelling than simply “I don’t want to do it.”