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Janice Hustvet worked for Courage Center, which merged with Allina Health System in 2013. Hustvet worked for 15 years at Courage Center as an Independent Living Skills Specialist, educating, supporting and assisting clients with disabilities including spinal cord and brain injuries.
On May 13, 2013, Hustvet completed her pre-placement health assessment. She acknowledged that she did not know if she had been immunized for rubella. She later confirmed that she had not been immunized for rubella. There was some confusion whether her job would require completion of a Respirator Medical Evaluation (“RME”). Following the merger on July 1, 2013, Hustvet was informed that she had to submit a complete RME and take one dose of a Measles, Mumps, Rubella vaccine (“MMR vaccine”).
Hustvet never took the MMR vaccine. She had had a severe case of mumps and measles, and she also had many allergies and chemical sensitivities. However, she did agree to take a rubella vaccine only, (without the mumps and measles), but no such vaccine was available. When Hustvet refused to do take the MMR vaccine, her employment was terminated.
Hustvet sued Allina Health alleging discrimination under the ADA. The federal court ruled against Hustvet, and she appealed to the United States Court of Appeals for the Eighth Circuit. Hustvet argued that she never received an offer of employment, and therefore the rules of post-offer medical examinations did not apply to her. She also argued that she was a continuous employee and that the health screen requirement was imposed after her employment.
The Court of Appeals interpreted the letter Hustvet received during the merger period advising that she would soon be an employee of Allina Health as an offer of employment. The Court noted that an employer has a right to apply entrance examination standards and withdraw an offer to those who do not meet those standards if the standards are job-related and consistent with business necessity.
Even if Hustvet were viewed as an existing employee and not subject to the post-offer requirement, the Court said that an employer can require an examination of an employee if that exam is shown to be job-related and consistent with business necessity. The Court said: “… We believe Allina’s decision to force a class of employees (those employees with client contact who merged into the company) to undergo a health screen was job-related and consistent with a business necessity. The information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job-related abilities. The undisputed evidence shows that the purposes of Allina’s health screen were to (a) insure that incoming employees who might come into contact with clients had immunity to communicable diseases as recommended by the Centers for Disease Control and Prevention. . .”
The Court noted that rubella has been eliminated in the United States but observed that rubella remains a common disease in many parts of the world and can be contracted through foreign travel. The Court further observed that rubella is particularly dangerous to expectant mothers and infants.
Hustvet also argued that her multiple chemical sensitivities constituted a disability that Allina should have accommodated by foregoing the requirement of the MME. The Court rejected this argument as well. “There is insufficient evidence in the record to support the conclusion that Hustvet’s chemical sensitivities or allergies substantially limit her ability to perform major life activities. She has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen. Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”
For these reasons, the Eighth Circuit affirmed summary judgment in favor of Allina. The case shows that courts will support termination of applicants who cannot pass a post-offer examination if the standards are job-related and consistent with business necessity. Readers may find this case at Hustvet v. Allina Health System, 910 F.3d 399 (8th Cir. 2018).
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.