Vaccine mandates prompt lawsuits

In December, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis unanimously affirmed the dismissal of a disability discrimination case filed by a health care worker who was fired after she refused to get a measles, mumps and rubella vaccine, according to the ruling in Janice Hustvet v. Allina Health System. In 2013, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis, where Ms. Hustvet worked as an independent living skills specialist. Allina, which declined comment, required Courage Center employees who had patient contact to be vaccinated, but she refused because of allergies and chemical sensitivities.

In June 2018, the 3rd U.S. Circuit Court of Appeals in Philadelphia reinstated disability and retaliation charges filed by a nurse who was terminated after she refused to get a mandatory tetanus, diphtheria, and pertussis vaccine because of anxiety, according to the ruling in Aleka Ruggiero v. Mount Nittany Medical Center; Mount Nittany Health System.

Ms. Ruggiero, who worked for State College, Pennsylvania-based Mount Nittany Medical Center, suffers from severe anxiety and inflammation of the esophagus and asked to wear a mask instead of receiving the vaccine. But she was formally terminated in July 2015 and filed suit alleging her former employer violated the Americans with Disabilities Act by failing to reasonably accommodate her and retaliating against her for requesting an accommodation.

The U.S. District Court in Scranton, Pennsylvania, granted the medical center’s motion to dismiss the case, but Ms. Ruggiero appealed, with the U.S. Equal Employment Opportunity Commission filing an amicus brief on her behalf.

“EEOC is very anti-mandatory vaccination right now,” said Katherine Dudley Helms, office managing shareholder for the Columbia, South Carolina, office of Ogletree, Deakins, Nash, Smoak & Stewart P.C. “They take the position that in most instances there are viable accommodations.”

Employers should utilize a free consultation tool provided by the federal government called askjan.org, set up to help determine when and whether reasonable accommodation is available and how to navigate the process, said Adrianna Shannon of Minneapolis-based Shannon Law LLC, who represented Ms. Hustvet but also represents employers.

“If the person could potentially have a disability, you have to go through that reasonable accommodation process,” she said, calling the website “a great failsafe to rely on” that could discourage future litigation by employees. “If they’re really taking those steps to try to do it right and try to work with the employee, the case will be dead in the water.”