In a decision with potential implications for employers who are considering implementing a mandatory COVID-19 vaccine policy, a federal court in New York found that a hospital employee who was terminated in December 2017, for not complying with her employer’s mandatory flu vaccine policy, failed to adequately support her claim for pregnancy discrimination.  In Allison LaBarbera v. NYU Winthrop Hospital, LaBarbera, a pregnant woman, requested an exemption from the hospital’s mandatory flu vaccination policy because she believed that the flu vaccine had not been adequately tested on pregnant women.  The hospital denied LaBarbera’s requested exemption on the grounds that the CDC and IVERB did not list pregnancy as a contraindication to the flu vaccine. LaBarbera refused the vaccine, was terminated for non-compliance with the vaccine policy, along with other employees who refused the flu vaccine.  LaBarbera sued the hospital for pregnancy discrimination and a failure to accommodate her.  In rejecting LaBarbera’s claims, the Eastern District of New York concluded that LaBarbera failed to present adequate direct or circumstantial evidence of pregnancy discrimination.  The court reasoned that, among other things, a mandatory flu vaccination policy was not in itself evidence of an intent to discriminate against pregnant women. The court also held that pregnancy alone, without an additional pregnancy-related condition, did not require an accommodation or exemption from the vaccination policy.

Although this case is instructive, it is not controlling with regard to a mandatory COVID-19 vaccination policy. The EEOC has published guidelines related to pregnant employees, and has also noted that the FDA’s EUA of COVID-19 vaccines differentiates those vaccines. In this context, federal employment discrimination laws may trigger accommodation rights for pregnant employees.  Pregnancy-related medical conditions may be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, then the employer should engage in the ADA’s interactive process.  Additionally, Title VII, as amended by the Pregnancy Discrimination Act, may require that pregnant women with related medical conditions receive job modifications, such as telework.  Employers contemplating a mandatory COVID-19 vaccination policy will want to consider these and other factors.