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Finally…Some Vaccine Accommodation Guidance!

by Jennifer Shaw | | May 30, 2023

Happy Tuesday.  I hope you all had a good holiday weekend!

So, we finally have some guidance from the California Court of Appeal regarding whether an employer lawfully may terminate an employee for refusing to be vaccinated (in this case, against the flu).  Here’s the scoop:

An employee with no patient care responsibilities worked for a hospital.  The hospital required as a condition of continued employment that she be vaccinated against the flu.  There were two exemptions to the requirement, one that permitted an employee to provide documentation establishing a “contraindication” to getting the flu shot.  The employee obtained a note from her health care provider stating that because of her history of cancer and general allergies, she should not receive the vaccine.  The hospital denied the exemption on the basis that that federal Centers for Disease Control and Prevention does not recognize either of the employee’s conditions as a valid medical contraindication to the flu vaccine.  Because the employee continued to refuse the vaccination, the hospital terminated her.

The employee then sued, claiming disability discrimination, failure to engage in the interactive process, and failure to accommodate a disability, among other things.  The trial court dismissed the case, and the Court of Appeal upheld the decision. The rationale for the appellate court’s decision is important:

  • The employee did not provide evidence that she had a “disability.”  Her record of cancer did not count because it did not limit her ability to perform her job (or any other “major life activities).  In addition, the employee offered no evidence that the potential side-effects of the vaccine would necessarily constitute a “disability,” (i.e., even with a “minor” reaction, the employee likely could still work).  The court stated in part, “an employer is not bound to accept an employee’s subjective belief that she is disabled.”  (Love that one!)  Finally, the hospital did not “regard” the employee as disabled.  Rather, they regarded her as not having any disability at all.
  • In addition, because the hospital relied on the CDC’s flu vaccine guidance in drafting and implementing the vaccination policy, the hospital had a legitimate, non-discriminatory reason to terminate the employee.

It would have been nice for this case to relate to COVID-19 vaccinations, but we will take what we can get.

The case is Hodges v. Cedars-Sinai Hospital Center.

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