Many employees have asked about whether their employer can require them to get a COVID vaccine. But what about other vaccines, like the flu vaccine? In a recently-decided, but pre-COVID case out of the California Court of Appeal, the court held that that a hospital's firing of an administrative employee for her refusal to get the flu vaccine did not constitute disability discrimination in violation of California's Fair Employment and Housing Act.
The defendant, Cedars-Sinai Medical Center, employs more than 15,000 people, including more than 2,000 doctors and nearly 3,000 nurses. The plaintiff began working for Cedars in 2000 in an administrative role. She did not interact with patients in that role.
In 2007, the plaintiff was diagnosed with cancer. Her treatment, which included chemotherapy, effectively rid her of the cancer, but left her with lingering side effects, including a weakened immune system and neuropathy (nerve damage that manifested itself as tingling sensations in her fingers and toes). After being off for a year and a half for treatment, the plaintiff returned to work in 2009. The side effects did not limit her ability to perform her job functions.
Before 2017, Cedars did not require administrative employees without direct patient contact to get a flu vaccine. In 2017 Cedars changed its policy and required all employees, regardless of their role, to be vaccinated by the end of the flu season. Cedars' new policy was enacted in response to multiple patient deaths in preceding years due to the flu and was in alignment with the Centers for Disease Control's recommendation that all U.S. health care workers get vaccinated annually against the flu.
Consistent with Cedars' expanded policy, the plaintiff applied for a medical exemption from the flu-vaccine requirement on the grounds that she feared the side effects of the flu vaccine would be like those she had experienced with chemotherapy; that she was afraid of needles; and that her parents had experienced severe flu-like symptoms after receiving the flu vaccine 20 years earlier.
Cedars' policy regarding medical exemptions acknowledged the legitimacy of two medical reasons for a medical exemption: a history of a severe allergic reaction to the flu vaccine or any of its components; and a history of Guillain-Barré Syndrome within six weeks of receiving a previous dose of any flu vaccine. After Cedars' Exemption Review Panel rejected the plaintiff's medical exemption request, the plaintiff refused to get the flu vaccine and was terminated. She sued Cedars for various violations of California's Fair Employment and Housing Act, including disability discrimination; failure to engage in the interactive process; and failure to accommodate a disability. The trial court dismissed the entire case before trial.
The Court of Appeal affirmed the trial court's ruling, holding that the plaintiff failed to produce evidence that she had a disability in the first place, based on the fact that her cancer and neuropathy did not limit her ability to work. Nor did the risk of mild, nonlimiting symptoms that only might arise from the taking of a flu vaccine. Under the Fair Employment and Housing Act, a condition is not a disability unless it limits a major life activity, which includes work. Additionally, the court found it adverse to the plaintiff that her own doctor had changed his mind and advised the plaintiff to get the flu vaccine before she was terminated because, as a cancer survivor, it was actually medically advisable for her to get the vaccine, not avoid it. Her doctor's recommendation in that regard was consistent with CDC guidelines. Finally, the court found it important that Cedars had strictly applied its policy to a large workforce and that a medical exemption had been denied in nine other instances.
Finally, given that the plaintiff could not establish a disability, the Court of Appeal rejected her failure-to-accommodate claim because there was no disability to accommodate. Her other claims failed, as well.
Disability-discrimination and failure-to-accommodate claims are usually very fact-intensive, meaning that the courts usually take a close look at the facts in each case and that the case is likely to be won or lost on those facts—or on the absence of facts, as was the case here. Cedars provided the plaintiff in this case with an opportunity to obtain an exemption based on a legitimate medical reason. She just couldn't provide one.
As an aside, employers often have legitimate, non-discriminatory reasons for their actions. The hospital in this case had a legitimate, non-discriminatory reason for requiring its employees to get a flu vaccine—as a health care provider, it treats people who are already sick in some way and cannot afford to expose them to the flu and make them more sick or kill them. The flu is no joke. (The Spanish Flu killed more than 20 million people in 1918.) New viruses are becoming a threat, as well, and the failure to vaccinate against current strains of those viruses creates an environment in which evolution and mutation can occur, as the subsequent COVID pandemic has proved. Whether an employer has a legitimate, non-discriminatory reason for its actions is also fact-intensive.
The case is Hodges v. Cedars-Sinai Medical, decided on April 28, 2023. The full opinion can be found here.
