covid-19

University’s Decision To Terminate Employee For Failure To Follow COVID-19 Vaccination And Testing Requirements Upheld.

Dylan Cunningham was employed at University of Hawaii as an agricultural research technician beginning in January 2020. In August 2021, The University implemented a policy that required all employees to provide verification that they had been vaccinated or tested negative for COVID-19 before entering a University work site. In September 2021, Cunningham received an email from the University stating that employees who did not comply with the policy would be subject to progressive disciplinary action.

Cunningham faced disciplinary action after he failed to provide proof of vaccination or proof of a negative COVID-19 test on five different occasions in late 2021. On each occasion, the University told Cunningham to leave the premises and placed him on leave without pay. The University told Cunningham he could seek a religious exemption, which Cunningham declined to do. On November 21, 2021, the University notified Cunningham that his employment would be terminated due to his failure to comply with the COVID-19 policy on five occasions. His employment was terminated effective November 29, 2021.

Cunningham brought suit, alleging that the University violated the Americans with Disabilities Act (ADA) when it fired him. To establish a claim for disability discrimination, Cunningham must establish that (1) he was “disabled” within the meaning of the ADA statute; (2) he was a “qualified individual,” meaning he was able to perform the essential functions of his job; and (3) he suffered an adverse employment action because of his disability. To meet the definition of “disabled” under the ADA, the person must have a physical or mental impairment that substantially limits one or more major life activity.

Cunningham argued that he was classified as disabled because he was deemed to be more likely to catch COVID-19 because he was not vaccinated and a COVID-19 infection could be severe enough to substantially limit one or more of his major life activities. The Court disagreed and stated that the ADA protects against anyone who experiences discrimination because of a current, past, or perceived disability— not a potential future disability. If the Court followed Cunningham’s reasoning, it would result in the ADA forbidding employers from enforcing any measures designed to stop the spread of COVID-19. The Court found this to be unreasonable.

Cunningham also brought a retaliation claim against the University. Cunningham argued that the he engaged in protected activity by objecting to the University’s COVID-19 policy pursuant to the ADA, that he suffered an adverse employment action when he was disciplined and fired, and that there was a causal link between the protected activity and adverse employment action. The Court disagreed. The University spelled out the consequences of noncompliance with the COVID-19 policy before Cunningham opposed it. Therefore, there was no causal link between Cunningham’s criticism of the policy and his eventual termination.

The Court ruled in favor of the University and dismissed the complaint.

Cunningham v. Univ. of Hawaii (D. Hawaii, Feb. 14, 2023) 2023 WL 1991783.

Note:

Although this case is from Hawaii and not binding in California, it shows that this court upheld a school’s policy to require COVID-19 vaccination or testing for all employees.

University’s Decision To Terminate LongTime Professor Upheld Due To Documentation Of Attendance And Performance Concerns.

Dr. Christian Fugar was employed with Dillard University from 1988 until he was terminated on November 6, 2017. He was an Associate Professor of Economics and Finance.

On August 15, 2017, Dr. Fugar informed his immediate supervisor that he received a jury duty summons for the week of August 21, 2017, which happened to be the same week that classes began at the University. The University approved his leave and instructed Dr. Fugar to provide an updated summons if the service was extended. The University also requested that Dr. Fugar provide the

University and his students with a course syllabus prior to the start of classes, but he failed to do so.

Dr. Fugar appeared for his jury service on August 22, 2017 and was selected to serve as a juror. On August 26, 2017, the presiding judge dismissed the jurors and instructed them to return the following Tuesday in light of Hurricane Harvey’s anticipated landfall. Between August 23, 2017 and September 7, 2017, the University did not hear from Dr. Fugar, despite sending him multiple email requests for his syllabus. On September 8, 2017, a University administrator made contact with Dr. Fugar, who indicated that he was still on jury duty. The same day, the University contacted the courthouse and learned that the jurors were not expected to return for jury service until October because the courthouse sustained damages from the hurricane.