As law students learn early in first year contracts, not every statement is an enforceable promise. That point formed the basis of a recent decision from the United States District Court for the District of Vermont. See Noel v. Walmart. The case concerned the termination of a pharmacist who suffered from trypan phobia (a fear of needles that causes nausea, dizziness and fainting at the sight of a needle) because he could not administer immunizations for Walmart customers—something that Walmart had determined to be an essential job function. Taken alone, that determination is not necessarily newsworthy. Vermont is in the Second Circuit and in 2017 the Second Circuit Court of Appeals, in a nearly identical case, upheld a pharmacy’s determination that giving immunization shots was an essential job function and that because the pharmacist could not administer the injections, he was not qualified and was not entitled to an accommodation. The Vermont District Court is required to follow Second Circuit precedent.

The wrinkle in the Noel case is that after Walmart had notified Noel in April of 2016 that administering injections was now a minimum qualification of his job, he applied for, and was granted, an accommodation and was told he would not have to do so. He received a letter on July 19, 2016 stating that administering immunizations “is not considered to be an essential function of . . . [Plaintiff’s] position.” However, the letter also contained a clear qualification: “[t]his approval is subject to further review in case your job description is revised in the future” and that “the company reserves the right to revisit the approval of Plaintiff’s accommodation at any time.” In October of 2016.

Walmart informed Noel that it was changing his job description and that administering injections was an essential function of the job. When he told his employer that he could not do this he was told that he would be fired. In November, 2016 Walmart published a new job description specifically stating that it was an essential job function. The only real distinction between Noel’s case and the binding Second Circuit precedent was the July 19, 2016 letter which, Noel argued, precluded Walmart from arguing that administering injections was an essential job function. The District Court disagreed: The July 19, 2016 letter was a mere conditional exemption, explicitly subject to revision at any time. By contrast, Walmart currently asserts that administering immunizations is an essential function, and it has previously indicated so in its company-wide announcement on April 8, 2016 and the company-wide job description on November 17, 2016. The Court went on to dismiss Noel’s claims. It is not clear whether the result would have been different had the July 19, 2016 letter not contained language that it was subject to revision at any time. The Court gave significant deference to the employer’s determination of an essential function. The conditional language, however, gave the Court an easy hook on which to hang its hat. Employers should consider using similar language to protect against an argument that its exemption from a job duty has become permanent when that was not the employer’s intent.