Takeaway: A hospital’s discharge of an administrative employee because she refused to get a flu vaccine was not disability bias, because the employee failed to show that she had a disability as defined under California law.
?A Los Angeles hospital did not discriminate against an administrative employee based on disability when it fired her after she refused to get a flu vaccine, a California appeals court recently ruled. Although the employee’s doctor wrote a note recommending an exemption to the hospital’s vaccine requirement for various reasons, including the employee’s history of cancer and general allergies, none of the reasons were a medically recognized contraindication to getting the vaccine. The trial court correctly concluded that the employee did not show that she had a disability, and so the hospital did not violate California’s Fair Employment and Housing Act (FEHA) in terminating her, the appellate court said.
The employee began working for the hospital in 2000. Throughout her tenure, she worked in an administrative role with no patient care responsibilities. Her office was in an administration building about a mile from the main medical campus, though she occasionally visited the main medical campus in her capacity as an employee.
In 2007, the employee was diagnosed with colorectal cancer. She stopped working for a year and a half to undergo treatment, which included chemotherapy. The treatment was effective in ridding her of cancer but left her with lingering side effects, including unspecified allergies, a weakened immune system and neuropathy—damage to the nerves resulting in an ongoing tingling sensation in her fingers and toes. None of these side effects limited her ability to perform her job functions, and she successfully returned to work for the hospital in 2009.
As an administrative employee without direct patient contact, the employee was under no obligation to get a flu vaccine when she was hired or when she returned from cancer treatment in 2009. This changed in 2017. That September, the hospital announced a new policy requiring all employees, regardless of their role, to be vaccinated by the beginning of flu season.
The expanded 2017 policy aligned with the recommendation of the U.S. Department of Health and Human Services Centers for Disease Control and Prevention (CDC) “that all U.S. health care workers get vaccinated annually against influenza.” For these purposes, the CDC defined “health care workers” to include “persons (e.g., clerical, dietary, housekeeping, laundry, security, maintenance, administrative, billing and volunteers) not directly involved in patient care, but potentially exposed to infectious agents that can be transmitted to and from health care workers and patients.”
The hospital’s 2017 flu vaccination policy made exceptions only for employees establishing a valid medical or religious exemption. Employees who declined the vaccine based on medical contraindication per CDC guidelines were required to submit an exemption request form completed by their physician.
The employee’s doctor submitted a form stating that the employee had a history of allergies following cancer treatment, but did not claim that she was allergic to the flu vaccine or had experienced an adverse reaction following a previous vaccination.
The hospital denied the employee’s claim for an exemption, placed her on unpaid leave and told her she would be terminated if she failed to comply with the hospital’s policy. She still refused to get vaccinated and was ultimately terminated.
She filed a lawsuit against the hospital, claiming disability discrimination under FEHA. The hospital moved to have the lawsuit dismissed before trial, and the court granted the motion. The employee appealed.
Employee Did Not Have a Disability
The appellate court concluded that the lower court was correct in dismissing the bias claim before trial because the employee did not show that she had a disability. Therefore, she would be unable to prove disability bias in violation of FEHA.
The employee argued that her cancer history and neuropathy amounted to a physical disability because they limited her ability to safely receive the vaccine and therefore limited her ability to work.
The court concluded that while the employee’s history of cancer was certainly a physical condition, it was not a disability under FEHA because it did not “limit a major life activity,” as required by the statute. The employee conceded that her prior cancer did not limit her ability to perform her job duties.
Furthermore, the employee offered no evidence that the possible side effects of the vaccine would amount to a disability. Even if the employee were to experience a moderate allergic reaction because of the flu vaccine, she would still be able to perform her job and other major life activities, the court found.
Even if the plaintiff had shown that she had a disability, the court said, the hospital gave a legitimate, nondiscriminatory reason for her termination. The hospital presented evidence that its mandatory vaccination policy was a product of concern about patient safety and guidance from the CDC, which recommended that all employees at health care facilities, regardless of role or involvement in patient care, receive the flu vaccine, the court noted.
Hodges v. Cedars Sinai Medical Center, Calif. Ct. App., No. B297864 (May 19, 2023).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.