Pharmacist Has Moral Objection to Providing Immunizations

APRIL 16, 2017
Joseph L. Fink III, BSPharm, JD
Joseph L. Fink III, BSPharm, JD,
Dr. Fink is a professor of pharmacy law and policy. FULL BIO
Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.
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ISSUE OF THE CASE
A national pharmacy chain implemented a policy that all of its pharmacists are expected to become immunizers unless there is a medical exception. When a pharmacist refuses to participate and is terminated, will his lawsuit alleging age discrimination succeed?

FACTS OF THE CASE
A pharmacist in a Mid-Atlantic state objected when his employer, a prominent national pharmacy chain, began offering immunizations by its pharmacists. He did not wish to participate in the service because a close friend, after receiving the influenza vaccine, had died as a result of Guillain-Barré syndrome. The employee classified this as a “moral objection” to putting patients at risk for developing the syndrome following immunization. It was clear that the court handling this case viewed his objection as rooted in ethics or morals, not religious beliefs.

The pharmacist’s objection was initially accommodated by local management. If another pharmacist was on duty, the objecting pharmacist could refer a patient seeking an immunization to that colleague. If the objecting pharmacist was working alone, he could advise the patient of times when another pharmacist would be available to immunize. Eventually, the national chain’s policy evolved to explicitly state that all pharmacists were expected to immunize. A single remaining exception was made for pharmacists who had a personal medical justification for not immunizing. These pharmacists would be accommodated by shift modifications or a change in practice site.

The pharmacist refused several subsequent accommodations that were offered and was eventually terminated. He sued his former employer in federal court, basing the suit on an allegation of age discrimination. He argued that his vacated position had been filled by younger pharmacists and that some of them were unable to immunize when hired; his argument was advanced despite his clearly stated objections to participating in immunizations. He also attempted to include in the lawsuit a claim of wrongful discharge based on state law, alleging that the termination vio- lated the state’s “conscience clause.”

The attorney representing the pharmacist made a motion for summary judgment, asking the judge to rule on the main issues of the case before a full trial. This motion advances the argument that the factual issues in the case are clear and no issues of fact remain unsettled to be decided by a jury. If the motion is granted by the judge, the lawsuit is concluded.

THE RULING
The court ruled that the pharmacist had refused to perform essential functions of his position. That was the basis for the termination, not illegal discriminatory action by the employer based on his age. The court also denied his request for action based on the conscience clause. Judgment was for the pharmacy chain.

THE COURT’S REASONING
The first issue was whether it would be appropriate to decide the matter via summary judgment. The court stated that this disposition would be appropriate if “there is no genuine dispute to any material fact...” The burden falls on the party making the motion to establish that there is an “absence of a genuine issue of material fact.” The court concluded that in this instance, there were no genuine disputes of material fact.

The pharmacist conceded there was no direct evidence of age discrimination. If such evidence is missing, the plaintiff has the burden of establishing a prima facie case with 4 elements: he or she is (1) at least 40 years of age, (2) qualified for the job in question, and (3) suffered an adverse employment action, and (4) the circumstances gave rise to a reasonable inference of age discrimination. Prima facie means accepted as correct until proven otherwise or sufficient to establish a fact unless the contrary is proven.

The court ruled that the plaintiff/pharmacist had established a prima facie case based on the facts presented. This resulted in the law creating a presumption of unlawful discrimination, shifting the burden to the defendant/ employer to advance a “legitimate nondiscriminatory explanation for the adverse employment action.” It succeeded in doing so by indicating that the basis for the decision was the pharmacist’s refusal to immunize.

Once the employer rebutted the presumption of discrimination, the burden shifted back to the employee to show that the employer’s purpose was a pretext for a discriminatory motive. The plaintiff/pharmacist was unable to show that.

Dr. Fink is professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.

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