Complying with the ADA: Useful Guidance from the Second Circuit

By Glenn A. Duhl

Compliance_SignLet’s be honest, sometimes, complying with employer obligations under the Americans with Disabilities Act (ADA) can seem as difficult as untying a Gordian knot. Fortunately, a recent decision from the Second Circuit Court of Appeals provides employers with useful guidance on some ways to avoid disability discrimination and/or failure-to-accommodate claims.

In Stevens v. Rite Aid Corp., a pharmacist suffering from trypanophobia–fear of needles–was terminated from his employment because he could not comply with a company policy that required pharmacists to administer immunization injections to customers. The pharmacist sued, claiming wrongful termination, retaliation and failure-to-accommodate in violation of the ADA and similar New York law. After a jury trial, the court entered a judgment that awarded the pharmacist $2.6 million in damages on his claims. On appeal, the Second Circuit reversed the award. In doing so, the Court provided clarification of certain key terms that beguile even the best of us.

As a quick refresher, the ADA, which covers employers with 50 or more employees, prohibits discrimination in employment against a qualified individual on the basis of disability. Or, as explained by the Second Circuit, employers may not discriminate against employees with disabilities that do not prevent job performance. But, when a disability renders a person unable to perform the essential functions of the job, that disability renders him or her unqualified.

Straightforward enough. But who is considered a qualified individual? Under the ADA, a qualified individual is defined as one who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

The Second Circuit helps us to unpack what those two important terms actually mean.

  • What makes a job function essential?

In evaluating whether a particular job function is “essential,” the Court considers:

  • The employer’s judgment;
  • Written job descriptions;
  • The amount of time spent on the job performing the function;
  • The mention of the function in a collective bargaining agreement;
  • The work experience of past employees in the position; and
  • The work experience of current employees in similar positions.

While no single listed factor controls the outcome of a case, an employer’s judgment about which functions are essential for service in a particular position will be given considerable deference.

The Second Circuit found that administering immunization injections was an essential job requirement for pharmacists because: (1) the company made a business decision to start requiring pharmacists to perform immunizations in 2011; and (2) the company carried out this policy by revising its job description for pharmacists to require immunization certification and licensure, and including immunizations in the list of “essential duties and responsibilities.”

Similarly, the company had terminated another pharmacist with needle phobia after he failed to undergo the immunization-training program, further demonstrating that the company deemed administering immunizations to be an essential function of its pharmacists.

  • Was there a reasonable accommodation that would have enabled the needle-phobic pharmacist to perform the essential job function of administering immunization injections?

A reasonable accommodation may include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

Here, the pharmacist could not show that reasonable accommodation existed at the time of his termination. Specifically, the Second Circuit rejected:

  • The suggestion that the employer could have offered the pharmacist desensitization therapy because employers are not obligated to offer employees medical treatment as a reasonable accommodation under the ADA; and
  • The suggestion that the employer could have hired a nurse to give immunization injections for him or assigned him to a dual-pharmacist location because a reasonable accommodation does not require the elimination of an essential function or reallocation to other employees.

Although transferring the pharmacist to a pharmacy technician position that did not require administering immunization–which was offered by the employer–could have been a reasonable accommodation, the pharmacist was not open to it.

The takeaways?

  • Consistency is important–where an employer identifies a job function as “essential,” the employer should also treat that function as essential to the employee’s job in practice.
  • Reasonable accommodations are just that–such accommodations do not require the elimination of any of the essential job functions, nor do they require other employees to perform those job functions instead.

Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Please visit The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.

(image courtesy of