In Sharikov v. Philips Medical Systems MR, Inc., Docket No. 23-407-cv, 2024 WL 2820927 (2d Cir. June 4, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s judgment dismissing plaintiff’s claim of disability discrimination asserted under the Americans With Disabilities Act (ADA).
In sum, in this case the plaintiff alleges that his former employer (a federal contractor) violated the ADA when it terminated his employment after he refused to comply with its COVID-19 health and safety measures, which included a vaccination mandate. Specifically, while plaintiff does not contend that he was actually disabled within the meaning of the ADA, but rather that he was discriminated against because he was perceived to be disabled, i.e., because defendant “regarded” him as being impaired or because Philips treated him as having a “record of” an impairment.
Addressing an issue of first impression, as to the “regarded as” claim, the court explained:
Thus, the issue is whether an employee who is discharged for refusing to comply with a company-wide vaccine mandate (that is, who refuses to get vaccinated or to apply for a medical or religious exemption) is protected by the ADA on the theory that he is regarded as being disabled. No circuit court has addressed this precise issue,5 but several district courts have held that a plaintiff in Sharikov’s situation — an employee who is discharged for refusing to comply with a company-wide vaccination mandate — fails to state a claim under the ADA.6
The allegations of the Complaint make clear that Philips did not regard Sharikov as being disabled. A “disability” for the purposes of the ADA is defined as “(i) [a] physical or mental impairment that substantially limits one or more of the major life activities of such individual … or (iii) [b]eing regarded as having such an impairment.” 29 C.F.R. § 1630.2(g)(1). “An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” Id. § 1630.2(j)(1)(ii) (emphasis added); accord id. § 1630.2(k)(2). Therefore, to be perceived as having a disability, one must be perceived as different from most people in the general population. Philips required all employees (other than those who received a religious or medical accommodation) to be vaccinated, and so Sharikov was not singled out because of any perception that he had an impairment that substantially limited him as compared to others.7 Accordingly, Philips did not regard Sharikov as disabled.
Indeed, the ADA was enacted to eliminate discrimination against “individuals with disabilities” or perceived to have disabilities, and to address “discrimination faced day-to-day by people with disabilities” or perceived to be disabled. 42 U.S.C. § 12101(b)(1), (4) (emphases added); see Mary Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013). The ADA seeks to “assure equality of opportunity” for individuals with disabilities or perceived to have disabilities, 42 U.S.C. § 12101(a)(7) (emphasis added), and these concerns are simply not implicated where an employee, like Sharikov here, is treated like every other employee. See Speaks, 2022 WL 3448649, at *5 (“The Company did not classify Speaks as having any ‘impairment’ that limited one of her ‘major life activities.’ Instead, she was simply required to become vaccinated under the Company’s COVID-19 policy applicable to all employees.”).
To the extent Sharikov argues that Philips treated him and other unvaccinated employees “’as if’ they had an impaired or suppressed immune system that made them prone to contracting ‘Covid-19,’” Suppl. App’x at 352, the district court correctly rejected the argument, Sharikov, 659 F. Supp. 3d at 278. 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.8 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.
Based on this, the court affirmed the dismissal of plaintiff’s “regarded as” claim for failing to plausibly allege that the defendant regarded him as disabled within the meaning of the ADA.