- Administering injections was not an essential function of a Walmart pharmacist's job at the time he was allegedly constructively discharged; therefore, it was improper for a district court to have dismissed suit, the 2nd U.S. Circuit Court of Appeals has ruled (Noel v. Wal-Mart Stores, East LP, No. 18-cv-1139 (2nd Cir. Mar. 11, 2019)).
- The pharmacist, William Noel, had trypanophobia — fear of needles — and was granted a written exemption from a new Walmart requirement that all pharmacy personnel be certified to administer immunizations. His job description also never was altered to indicate that administering injections was an essential function of his job.
- A few months later, however, Walmart told the pharmacist that he would have to be certified to administer immunizations to keep his job. He refused to do so and was fired.
While Noel involved state law, it has some lessons for employers subject to the Americans with Disabilities Act (ADA).
Federal law requires employers to provide accommodations for workers with disabilities — but it does not require them to excuse workers from performing the "essential functions" of their jobs. According to the U.S. Equal Employment Opportunity Commission (EEOC), factors to consider in determining whether a function is essential include:
- Whether the reason the position exists is to perform that function;
- The number of other employees available to perform the function or among whom the performance of the function can be distributed; and
- The degree of expertise or skill required to perform the function.
The 2nd Circuit previously held in Stevens v. Rite Aid (No. 15-277, March 21, 2017) that providing injections was an essential function for Rite Aid pharmacists, and the U.S. Supreme Court declined to review the decision. The 2nd Circuit distinguished Noel from that case, however, because the requirement to provide injections was added as an essential function only after the pharmacist was allegedly constructively discharged.
It's relevant, too, that Noel requested and received an exemption from the injection requirement. A letter granted the accommodation, "without qualification or condition," and stated that Noel was "capable of performing the essential functions of his position." Although the letter stated that this accommodation was subject to further review under certain subsequent conditions, including a change in his job description, the job description was never altered, the court noted.
"In Stevens, it was undisputed that Rite Aid changed the job description for pharmacists to include immunizations as an essential duty of the position," said the 2nd Circuit. "Here, however, Noel specifically alleges that his job description had not yet changed as of the time of his constructive discharge."
Among other things, Noel demonstrates the importance of current, updated job descriptions. EEOC says it considers a written job description as evidence of essential functions, along with:
- The actual work experience of present or past employees in the job;
- The time spent performing a function;
- The consequences of not requiring that an employee perform a function; and
- The terms of a collective bargaining agreement.