On June 5, 2018, the US Third Circuit Court of Appeals overturned a District Court’s decision to dismiss a case filed by a nurse who alleged she was terminated for refusing a Tdap vaccine for medical reasons. The focus of the decision was not the vaccine refusal per se; the focus was what are the pleading standards in a claim alleging a failure to provide a reasonable accommodation of a disability. While the specific claim of the nurse’s vaccine refusal is unconvincing in many ways, I think the Third Circuit (“the court”) was right to allow her case to proceed at least a bit further.
For the purpose of the discussion of any motion to dismiss, the assumption is that the plaintiff’s factual allegations about her vaccine refusal choices are true. Therefore, what I am describing as “the facts” is the nurse’s version. Fact-finding may show that not all these allegations are provable.
The vaccine refusal case
Ms. Aleka Ruggiero was, according to her appeal, hired as a Registered Nurse by Mount Nittany Medical Center (MNMC) in 2008. Although she alleged that she suffered from “severe anxiety and eosinophilic esophagitis, which limit her ability to perform certain life activities, such as eating, sleeping, and engaging in social interactions,” Ms. Ruggiero, apparently, performed her duties as a nurse. In 2015, MNMC adopted a policy requiring all clinical employees to receive a tetanus-diphtheria-pertussis vaccine (Tdap). Ms. Ruggiero did not get the vaccine. Instead, Ms. Ruggiero submitted a letter from her doctor, Dr. Dib, saying she is: “medically exempt from receiving Tdap immunization for medical concerns.”
A representative of MNMC asked Dr. Dib to clarify which of the contraindications or precautions set out by the manufacturer prevented Ms. Ruggiero from receiving the vaccine. In response to her vaccine refusal, Dr. Dib submitted this letter:
Aleka Ruggiero is medically exempt from receiving the Tdap immunization due to severe anxiety with some side effects she read with this injection, especially with her history of having many food allergies, environmental allergy and eosinophilic esophagitis. Patient being terrified, I feel the risk of this Tdap injection outweighs the benefits. [Plaintiff] understands the risks of not getting this immunization.
MNMC wrote back that because she did not have one of the manufacturer’s contraindications or precautions, she must get the vaccine by a new date. She offered to wear a mask, as nurses refusing to get influenza vaccines did. She was removed from work on July 22, 2015, and terminated her employment on July 31, 2015.
Ruggiero sued, making a set of claims under the Americans with Disabilities Act (ADA). The American with Disabilities Act protects people with a disability from workplace discrimination, including vaccine refusal. Here, Ruggiero raised three claims under it:
- The ADA requires employers, in certain circumstances, to accommodate disabilities. Ruggiero claimed that she was a “qualified person with a disability”. If a person like that notifies the employer of the disability and that it limits participation in certain activities, and asks for an accommodation, the employer may need to engage in a good faith “interactive process” with the employee to try and find an accommodation that works. Ruggiero claimed she filled the criteria, and her employer did not engage in such a good faith process.
- Ruggiero claimed that her employer, by dismissing her, discriminated against her because of her disability, forbidden under the ADA.
- Ruggiero claimed that her employer retaliated against her for participating in activities protected under the ADA – namely, asking for accommodation. That, too, is forbidden.
A federal district court judge dismissed her claim under rule 12 (b)(6) of the Federal Rules of Procedure, which states, “failure to state a claim upon which relief can be granted.” Basically, the court found that, assuming the facts were exactly as she stated them, there was still no legal basis to provide relief under any of her claims for vaccine refusal.
Of interest, on September 27, 2017, the Equal Employment Opportunities Commission (EEOC) filed an amicus curiae brief in the case. This is important because it shows that the EEOC – an agency dedicated to protecting workers from workplace discrimination – saw the case as of general importance. Its participation also provided additional legal talent to Ruggiero’s side, and the Court’s decision largely tracked the points made by EEOC.
The Third Circuit ruling on Ruggiero vaccine refusal
It is important to clarify what the issue that the Third Circuit addressed was. The Third Circuit was not asking whether Ruggiero was in fact discriminated against because of her disability, whether she can work as a healthcare worker unvaccinated, whether her disability was relevant to her refusal to vaccinate, or whether the hospital should have accommodated her and how.
The Third Circuit was deciding what does a plaintiff making the claims of non-accommodation, discrimination, and retaliation under the ADA need to allege in order to get the chance to prove her claim, to get past the initial stage in seeking to eventually have her day in court. It was also addressing what a plaintiff needs – or does not need – to allege at this point. Again, fact-finding has not happened yet and is not part of this stage. The question is whether the employee alleged enough of a claim that – was she able to present supporting evidence during fact-finding – she might be able to win her case.
This is a big deal: a demanding standard at this stage could mean that plaintiffs would have to show quite a bit in order to get a chance to go through discovery, the pretrial fact-finding procedure that allows parties to ask questions, request documents, and more. While that would protect employers from having to litigate disability claims that are not adequately pleaded, it puts a heavy burden on employees and can lead to justified claims failing because the plaintiff did not have a proper chance at seeking all the evidence and presenting a case.
In the background of the court’s decision is also the power relation here. The average employer is better resourced than the average employee and often has a power advantage compared to the employee. The employer is more likely to have access to relevant evidence (such as documents and witnesses) than the employee.
Mirroring the EEOC’s points, the Third Circuit found – reasonably, in my view – that the District Court was wrong to dismiss the case.
The District Court found that Ms. Ruggiero had failed to plead notice of her disability and that the pleading showed MNMC had filled its obligation to engage in an interactive process. The Third Circuit rejected both findings.
- There are enough facts in the complaint to suggest MNMC knew of the disability, the alleged limitation it posed, and the request for accommodation. Among other things, this is clear from MNMC’s request for more information to decide whether to accommodate Ms. Ruggiero.
- The pleading suggested that MNMC rejected Ms. Ruggiero’s proposed accommodation without offering an alternative, and a deciding court could, from this, later reach the conclusion that MNMC “prematurely ceased the interactive process and barred Ruggiero from the individualized inquiry to which she was entitled under the ADA.” This is not the stage to decide this question. All that is needed at this point is if there is enough in the pleadings to allow Ms. Ruggiero to try and prove this point – and the court thought that there was.
- The alternative claim that she had not pled a disability also does not hold: she named a specific disability and pled that it limited certain activities. She does not need, at this stage, to show that her disability actually prevented getting the vaccine, because she is not required to prove her case at this stage: just to show she deserves a chance to prove it.
The same type of analysis applied to the discrimination and retaliation claims. The court pointed out that at this point, Ms. Ruggiero did not need to prove she was discriminated against; she just has to allege when and how she was discriminated against, and she did, by claiming that
…MNMC discriminated against [her] when it terminated her on July 31, 2015, after receiving two doctor’s notes indicating that she should be exempted from receiving a required vaccine for medical reasons. Her termination may provide an inference of discrimination when considered alongside her allegation that other MNMC employees were allowed to not have the TDAP vaccine and remain employed with MNMC.
The same rationale was used in relation to her retaliation claim. The District Court dismissed it because it said Ms. Ruggiero did not allege she participated in a protected activity – but asking for an accommodation was a protected activity, and Ms. Ruggiero alleged it, and the timeframe raised a question of causation between her request for accommodation and her firing. She may not be able to prove retaliation – but this is not the stage in which she has to. She just has to plead – claim – enough to be allowed to try and prove it in court.
I doubt Ms. Ruggiero can prove her case (note that the Third Circuit itself, in the decision, pointed out this was a close case). It is reasonable for healthcare facilities to require workers working directly with patients to get the Tdap vaccine – pertussis is present in our communities and can be very dangerous to young infants or other vulnerable people, and both diphtheria and tetanus are very dangerous.
Anxiety and eosinophilic esophagitis are problematic reasons for vaccine refusal – they are not direct medical contraindications for this vaccine, nor is there good evidence they make the vaccine more dangerous to her than to others. Basically, there is no clear link between the alleged disability and the alleged limitation. Her doctor’s note is somewhat unclear, though more information on that can come out during fact-finding. Maybe evidence would come out later that suggests that there are stronger reasons to exempt her. But right now, on the claimed disability, it doesn’t look promising.
There are also exceptions to the requirements of accommodation under the American With Disabilities Act, for example, if accommodating the worker would be a very high burden on the employer or if there is a direct threat to others from doing so.
But these are not the questions in this opinion. The simple question was whether this case should go beyond the initial pleading stage to discovery and perhaps to trial. The Third Circuit overturned the District Court’s decision because, basically, it saw the District Court as demanding too much of an employee alleging discrimination because of disability at this early stage in the legal process.
This opinion is not about the general ability of healthcare facilities to require vaccines: they can do that. It is about making sure disabled workers have a fair chance to prove their case, and not setting too high an initial bar to doing so. While healthcare facilities are within their rights to require vaccines, and while this appears to be a weak claim under the ADA, it was reasonable for the Third Circuit to protect this employee’s ability to get past the initial pleading stage and have the chance to prove her case.