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HR Homeroom: Employer’s COVID Vaccination Rule doesn’t Create ‘Record of’ ADA Claim

05 Jun, 2024 Frank Ferreri

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New York, NY ( -- Since Pfizer and Moderna rolled out their answers to the COVID-19 pandemic, there's been countless arguments offered for why requiring a workforce to get the jab is a wrong idea. But, as a recent case shows again, the possibility of discrimination under the Americans with Disabilities Act hasn't been a successful one of those reasons.

Case: Sharikov v. Philips Medical Systems MR Inc., 2024 WL 2820927 (2d Cir. 06/04/24).

What happened: In October of 2021, an employer that was a federal contractor advised its employees that the federal government had issued a mandate requiring federal workers and employees of federal contractors to be vaccinated against COVID-19. Employees who failed to comply with the required would be considered to have voluntarily quit. 

An employee of the company expressed that he would not comply with the vaccination rule and claimed that it violated his rights under the Americans with Disabilities Act. 

Later, when a court put the federal mandate on hold, the employer announced that it was continuing to require vaccination of all employees as a matter of company policy.

Because the employee refused to provide proof of vaccination or approval of an accommodation, the employer notified him that his employment had been terminated and that it would be recorded a voluntary resignation.

The employee sued under the ADA, claiming that the employer “made a record of disability by classifying” him as an “unvaccinated” employee.

The District Court rejected his argument, reasoning that accepting it would mean accepting that the employer recorded all its employees as having an impairment, an argument that other courts had also rejected.

The employee appealed to the 2d U.S. Circuit Court of Appeals.

Rule of law: The elements of an ADA claim are:

  1. The employer is subject to the ADA.
  2. The employee has a disability or is perceived to have one as defined by the ADA.
  3. The employee is qualified to perform the essential functions of the job, with or without a reasonable accommodation.
  4. The employee suffers an adverse employment action because of his disability.

The ADA protects not just those employees who have an actual disability but also those who are subjected to discrimination because they have a “record of” an impairment.

What the 2d Circuit said: The employee did not have a “record of” claim because he did not allege that he had a history of or has been misclassified as having a mental or physical impairment that substantially limited one or more major life activities.

“The Complaint alleges only that [the employer] recorded him as not being vaccinated and not having applied for an exemption,” the 2d Circuit wrote. “These allegations fail to plausibly state a claim for relief.”

Thus, the 2d Circuit upheld the District Court’s dismissal of the employee’s ADA claim.

The takeaway: A record that an employee is not vaccinated does not imply that the employee has “a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population."

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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