COVID vaccine-related disability discrimination claim fails

We have another COVID-19 vaccination case in the Second Circuit, this one alleging that a medical contractor fired the plaintiff in violation of the Americans with Disabilities Act after he refused to take the vaccine. Plaintiff argued that his employer regarded him as disabled and then retaliated against him after he objected to the vaccine mandate. Plaintiff loses the case.

The case is Sharikov v. Philips Medical Systems MR, Inc., issued on June 4. Plaintiff worked in defendant's Latham, N.Y., office. After defendant began implementing COVID-19 health measures, including masking, glove-wearing, screening, etc., it told its employees that it had to comply with a federal vaccine mandate for federal contractors like Philips Medical Systems. Employees were told they would have to resign if they did not comply with the mandate. Eventually, the federal mandate was put on hold due to court rulings, but defendant continued to adhere to local vaccine mandates. Plaintiff objected to the mandate and claimed he was being discriminated against. In December 2021, plaintiff field an EEOC charge and also sent a missive to defendant's global ethics complaint system, claiming that defendant was

regarding me as having a disability (an impaired immune system and an impaired respiratory system) without any diagnosis or individualized assessment and has also made a record of such disability by misclassifying me as having, in ADA terms, a mental or physical impairment that substantially limits one or more major life activities. My employer is also coercing me to submit to medical examinations and interventions as accommodations ("mitigation measures") without any informed consent.

Plaintiff was eventually fired and his departure was classified a voluntary resignation. 

The Court of Appeals (Livingston, Kearse and Chin) holds that plaintiff's discrimination claim fails for the following reason:

1. Plaintiff's "regarded as" disabled claim under the ADA is dismissed because defendant's vaccine mandate applied to all employees, not just plaintiff, and the company imposed the mandate pursuant to federal rules and also to protect employees and customers from infection. The Second Circuit holds that a plaintiff is not "regarded as" disabled when he is terminated for not complying with an office-wide vaccination mandate. Put another way, the company did not regard plaintiff as disabled because he was not singled out for the mandate on the basis of any perceived disability. "Sharikov does not explain how adopting measures to prevent the spread of a communicable disease implies an impairment, and he cites no case law equating prophylactic measures with assumptions of disability. Moreover, taken to its logical conclusion, Sharikov's position would subject many companywide safety policies to potential challenge under the ADA on the theory that such policies perceived all employees as disabled."

2. Nor is there a retaliation claim. Yes, plaintiff objected to the vaccine mandate and filed an EEOC charge, which is protected activity. But no, he cannot show, even under Rule 12 motion to dismiss standards, that he would not have been fired had he not lodged these objections. "The allegations of the Complaint instead make clear that Sharikov was discharged because he refused to comply with the company-wide policies first announced in October 2021, when all employees were told they had to be vaccinated or approved for an exemption by February 4, 2022 or be deemed to have resigned." The Complaint instead confirms that plaintiff was fired because he would not comply with a company-wide policy that applied to all employees.