4th Circuit: Employee’s vaccine refusal not ADA-protected

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SUMMARY

• Johns Hopkins University fired a systems engineer who refused a COVID-19 vaccine and blocked access to her medical records.
• The 4th Circuit ruled the employer had no Americans with Disabilities Act duty without adequate medical documentation.
• The employee submitted outdated research and a 2012 Lyme diagnosis but declined to let doctors confirm her exemption claim.
• A judge said the lab’s good-faith effort was met with noncooperation, which foreclosed liability.

By Nate Delesline III

An employee who prevented her employer from learning more about why her condition made taking the COVID vaccine risky failed to show the employer had a duty to accommodate under the Americans with Disabilities Act, the 4th U.S. Circuit Court of Appeals has determined.

Sally Tarquinio was a systems engineer at Johns Hopkins University’s Applied Physics Lab in Maryland in September 2021 when the lab directed all its employees to follow a federal COVID-19 vaccination mandate.

Tarquinio said she was diagnosed with Lyme disease in 2012 and was under the care of a physician to manage the condition. She asked for a medical exemption from the COVID vaccine requirement to accommodate her stated disability, which she said affected her immune system.

Tarquinio submitted medical documentation. But the lab wanted more information and asked her to sign a medical records release so that it could communicate with her health care provider. She declined.

As a result of failing to agree to the medical records release and refusing to take the COVID-19 vaccine, Tarquinio was terminated. She sued, alleging her employer failed to accommodate her disability, terminated her because of her disability, and subjected her to an unlawful medical examination.

Each of those acts, she alleged, was prohibited under section 102 of the ADA. She sought $500,000 in compensatory damages, along with punitive and nominal damages as determined by a jury, along with attorneys’ fees.

The lab moved for summary judgement, which the U.S. District Court granted on all counts.

Writing for the three-judge 4th Circuit panel, Judge Albert Diaz cited a 6th Circuit case, EEOC v. Prevo’s Fam. Mkt., Inc., in finding that employers have a right to confirm if a need for accommodation exists.

In addition, he wrote, “employers ‘need not take the employee’s word for it that the employee has [a disability] that may require special accommodation.”

The panel affirmed the trial judge’s judgment.

The 13-page opinion is Tarquinio v. Johns Hopkins University’s Applied Physics Lab, (VLW 025-2-234).

Interactive process

Francis J. Collins of Baltimore represented the plaintiff, and Jeremy S. Schneider of Reston was counsel for the Johns Hopkins lab. They did not respond to a request for comment before deadline.

However, Joshua Erlich, an Arlington-based employment attorney, called Tarquinio a “pretty straightforward” disability accommodation case with two noteworthy elements.

First, Erlich said, the case reaffirms that an employer is not obligated to grant a reasonable accommodation when an employee fails to participate in the process.

In support of her request for a vaccination exemption, the plaintiff submitted a 2012 blood test that indicated she was positive for Lyme disease at that time, the opinion noted. She also submitted links to two scientific papers stating that Lyme disease could trigger chronic autoimmune disease.

However, the 4th Circuit opinion noted that “neither paper discussed vaccination, and Tarquinio didn’t explain why they were relevant.” The opinion also noted that the scientific papers were published in 2004 and 2005.

Erlich said a second noteworthy element “is that a failure to engage in the interactive process, by itself, does not amount to a violation of the law. One should look to the ultimate decision made during the accommodation process rather than failures during the process.”

He added that party can sue for failure to accommodate “and use the failures of the interactive process as evidence of disability discrimination.”

Vaccine exemption denied

During the process of seeking a vaccine exemption, the plaintiff sent her employer, including Dr. Clarence Lam, the lab’s medical officer, a lengthy email.

She said in part that she felt as though she was being forced to choose between her health and her job and that “her ‘body [would] go crazy due to immune chaos, and most likely [suffer] a bad outcome,’” if she was compelled to take the COVID-19 vaccine.

In another email correspondence, the plaintiff repeated that she was “[t]errified” to introduce the COVID vaccine into her body. She asserted that her doctor was “strongly advising [her] not to take a vaccine.”

As a compromise to the vaccine mandate, the plaintiff did offer to submit to weekly COVID testing. She also asked for permission to work remotely three days a week.

But due to an inability to access the plaintiff’s medical records or communicate with her doctors, Lam declined to grant an exemption, writing in part that “there is no evidence that Lyme disease should affect an individual’s ability to be vaccinated for [COVID-19] and it is not a CDC recognized clinical contraindication.”

The employer deemed the plaintiff’s accommodations request “insufficiently supported.”

Liability foreclosed

The court focused on the plaintiff’s failure-to-accommodate claim in reaching its opinion.

“The ADA’s implementing regulations contemplate that an employer will often have to ‘initiate an informal, interactive process’ with an employee to identify a reasonable accommodation,” Diaz wrote, citing 29 C.F.R. § 1630.2(o)(3).

That process, Diaz said, should identify the specific disability-related limitations and the potential reasonable accommodations.

“If the employer, for example, sabotages the interactive process to avoid discharging its duty, then the employee can use that sabotage to show that the employer refused an accommodation. But if the employee prevents the employer from understanding her disability, then the employer’s duty never arises, and the employee’s claim fails,” Diaz wrote.

However, “when Tarquinio ‘declined to sign the medical release form that would allow Dr. Lam to make an informed decision,’ the court reasoned, she ‘refused to participate’ in the interactive process despite the lab’s ‘good faith’ efforts, foreclosing liability,” Diaz said.

Although the plaintiff told her employer about her disability, her symptoms, and her requested accommodation to be exempted from the COVID-19 vaccination, she did not, in the court’s view, adequately explain why her condition would make taking the COVID-19 vaccination risky.

“Maybe if the lab had been able to contact Tarquinio’s medical providers, those providers could have explained that Tarquinio had an autoimmune disease so severe that, in their judgment, Tarquinio was more likely to be harmed by the COVID vaccine than by COVID. But Tarquinio refused to let that conversation happen,” Diaz wrote.

EXTERNAL LINKS

• EEOC guidance on COVID-19 and ADA accommodations
• CDC vaccine clinical contraindications
• 29 C.F.R. § 1630.2(o)(3) – ADA regulations on interactive process