If a pharmacist can’t vaccinate patients can your pharmacy employer fire you? I have personally handled a few cases where pharmacists are unable to vaccinate patients. Thus far, I requested reasonable accommodations on behalf of the pharmacist and the employer has properly granted those requests. For example, a pharmacist may have a fear of injecting people or causing pain to others, or physically the pharmacist is unable to manage a crisis where a
patient has an anaphylactic shock.
On January 18, 2015, a New York District Court in a jury trial awarded $2.6 million to a pharmacist fired by Rite-Aid because he could not vaccinate customers. The case is Stevens v. Rite-Aid Corp et al, No. 6:13-cv-00783 (N.D.N.Y Jan. 18, 2015). In a nutshell, the plaintiff pharmacist had been working for Eckerd Pharmacy since 1977 and when Rite-Aid acquired Eckerd in 2007 he became a Rite-Aid employee. Four years later Rite-Aid required pharmacists to become trained to vaccinate customers, etc. Stevens had physician documentation that he has trypanophobia, an intense and irrational fear of needles. Instead of making a reasonable accommodation for Stevens’ problem with vaccination, Rite-Aid just fired him.
First, the pharmacist requested an EEOC investigation where Rite-Aid admitted that they fired Stevens simply because he refused to administer flu shots. Rite-Aid claimed that a needle phobia is not a disability per the ADA and therefore they could fire Stevens who had been a faithful pharmacy manager for years. The EEOC concluded that trypanophobia qualified as a disability and there was reasonable cause to believe Rite-Aid discriminated against Stevens’ disability by denying him reasonable accommodations and firing him in willful violation of the ADA. To make a long story short, that allowed him to go for a jury trial and the jury found in favor of Stevens. You can look this case up on the internet for all of the details. But what is important is that this gives hope to many pharmacists who have handicaps and phobias that hinder them from vaccinating people but does not interfere with their ability to work as pharmacists. Further, the most important lesson to learn is that a jury gave the pharmacist justice. If this pharmacist had signed a waiver with his employer of a right to a jury trial and instead opted for arbitration it is my considered opinion, that he would have lost the arbitration. This case demonstrates why employee pharmacists should not in my opinion, give up their valuable right to a jury trial and agree to binding arbitration for grievances with their employer.
When an employee or consumer must litigate, the big corporation has a huge advantage in arbitration; that is because the plaintiff is a common citizen who has little (and sometimes no money) and an injustice has been done by a fortune 500 corporation which has vast reserves of money and clout. Think about it from the perspective of the arbitrator. Generally, the plaintiff and the corporation agree upon an arbitrator. But the reality of it is, the corporation always gets favorable treatment from the arbitrator because the arbitrator knows that that the corporation is repeat business for him. If the arbitrator finds in favor of the little guy the corporation will never hire him again. It is in the arbitrator’s financial interest to side with the mega-corporation every time. Think of arbitration as a casino and the arbitrator is a slot machine.