Case: 1:22-cv-02258-PAB Doc #: 24 Filed: 05/09/23 1 of 12. PageID #: 171
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
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`Case No. 1:22-CV-02258
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`JUDGE PAMELA A. BARKER
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`MEMORANDUM OPINION AND
`ORDER
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`JONATHAN BOBNAR,
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`ASTRAZENECA,
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`Plaintiff,
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`-vs-
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`Defendant.
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`This matter comes before the Court upon Defendant AstraZeneca’s Motion for Partial
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`Dismissal of Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) filed on February 24, 2023.
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`(Doc. No. 11.) Plaintiff Jonathan Bobnar filed a Brief in Opposition on March 10, 2023 to which
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`AstraZeneca replied on March 24, 2023. (Doc. Nos. 15, 19.) For the following reasons,
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`AstraZeneca’s Motion is GRANTED.
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`I.
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`Background
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`A.
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`Factual Allegations
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`Bobnar alleges that he worked for Defendant AstraZeneca for over eight years until
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`AstraZeneca wrongfully terminated him on April 29, 2022. (Doc. No. 1, ¶¶ 1, 17.) He alleges that
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`on January 31, 2022, AstraZeneca imposed a COVID-19 vaccine mandate for U.S.-based employees,
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`“subject to religious or medical exemptions, provided those requests were received by February 28,
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`2022.” (Id. at ¶ 23.) According to the policy, employees were required to be vaccinated by March
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`31, 2022, unless they received an exemption. (Id. at ¶ 25.)
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` Bobnar alleges that he was and is a devout Christian and was “guided by the Holy Spirit in
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`prayer to not take the COVID-19 vaccines.” (Id. at ¶ 14.) Bobnar alleges that he “sincerely believes
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`that receiving a COVID-19 vaccine, derived from aborted fetal stem cell lines[,] would violate his
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`conscience and religious faith and the desire to maintain his body as a temple for the Holy Spirit.”
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`(Id. at ¶ 15.)
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`Bobnar alleges that on February 15, 2022, AstraZeneca sent employees a “religious
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`exemption form” via e-mail and indicated that the form was due by February 28, 2022. (Id. at ¶ 26.)
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`On February 28, 2022, Bobnar submitted his request for religious accommodation to AstraZeneca,
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`using its request form. (Id. at ¶ 27; see also Doc. Nos. 11-2, 15-1.) Bobnar asked to be exempt from
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`AstraZeneca’s mandatory vaccination policy “due to a conflict with his sincerely held religious
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`beliefs,” specifically that “his Christian faith requires him to follow the guidance of the Holy Spirit,
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`and through prayer, the Holy Spirit instructed [Bobnar] to not receive the COVID-19 vaccine.” (Id.
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`at ¶ 28.) Bobnar alleges that “[t]o ignore the guidance of the Holy Spirit would force [Bobnar] to
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`violate his sincerely held religious beliefs.” (Id.)
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`Bobnar alleges that AstraZeneca “questioned the sincerity” of his religious beliefs and
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`required Bobnar to respond to “intrusive and inappropriate questions before considering his request
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`for religious accommodation.” (Id. at ¶ 29.) Specifically, AstraZeneca asked Bobnar to “[p]lease
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`explain how the religious belief that prevents you from receiving the COVID-19 vaccine affects other
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`areas of your life. For example, have you received other vaccines in the past?”1 (See Doc. No. 15-
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`1.)
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`1 The Court notes that Bobnar does not quote the specific question from AstraZeneca’s exemption form in his Complaint
`or otherwise identify this question as the basis for his ADA claim. However, Bobnar argues in his Opposition that
`AstraZeneca “[s]pecifically” questioned the sincerity of his religious beliefs by asking this question, and that this question
`is a prohibited inquiry under the ADA. (Doc. No. 15, PageID# 87, 89-95.) In ruling on a Rule 12(b)(6) motion, a court
`“may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case
`and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to
`the claims contained therein.” Bassett v. Nat. Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) ; see also Brent
`v. Wayne Cty. Dep’t of Human Servs., 901 F.3d 656, 694 (6th Cir. 2018). AstraZeneca attached Bobnar’s Religious
`Reasonable Accommodation Request Form to its Motion. (See Doc. No. 11-2.) Bobnar referenced this form throughout
`2
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`On March 31, 2022, AstraZeneca denied Bobnar’s request for a religious exemption from its
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`COVID-19 vaccine mandate. (Id. at ¶ 35.) On April 7, 2022, Bobnar sought further clarification
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`regarding the denial of his accommodation request. (Id. at ¶ 38.) Bobnar alleges that AstraZeneca
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`wrongfully terminated his employment on April 29, 2022. (Id. at ¶ 41.)
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`B.
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`Procedural History
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`Bobnar filed this case on December 15, 2022. (Doc. No. 1.) In his Complaint, Bobnar alleges
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`six counts against AstraZeneca: Count One, religious discrimination/failure to accommodate in
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`violation of Ohio law and Title VII; Count Two, religious discrimination/retaliation in violation of
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`Ohio law and Title VII; Count Three, violations of the Americans with Disabilities Act (“ADA”);
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`Count Four FMLA interference; and Counts Five and Six, breach of contract and/or failure to pay
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`wages in violation of Ohio law. (Id. at ¶¶ 51-92.)
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`AstraZeneca filed the instant Motion for Partial Dismissal of Plaintiff’s Complaint on
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`February 24, 2023. (Doc. No. 11.) AstraZeneca seeks to dismiss Count Three, Bobnar’s ADA claim.
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`(Id.) Bobnar filed his Opposition to AstraZeneca’s Motion on March 10, 2023, to which AstraZeneca
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`replied on March 24, 2023. (Doc. Nos. 15, 19.) Thus, AstraZeneca’s Motion is ripe for a decision.
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`II.
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`Standard of Review
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`AstraZeneca moves to dismiss Count Three of Bobnar’s Complaint for failure to state a claim
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`under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Doc. No. 11.) Under Rule 12(b)(6),
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`the Court accepts Bobnar’s factual allegations as true and construes the Complaint in the light most
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`favorable to Bobnar. See Gunasekara v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). To survive a
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`his Complaint and also attached the form as an exhibit to his Opposition. (Doc. No. 1, ¶¶ 26-29, 33; see also Doc. No.
`15-1.) Thus, both parties agree the form is central to the claims contained in Bobnar’s Complaint. Accordingly, the Court
`will consider the form in ruling on the instant Motion.
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`motion to dismiss under this Rule, “a complaint must contain (1) ‘enough facts to state a claim to
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`relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action’s elements,’ and (3)
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`allegations that suggest a ‘right to relief above a speculative level.’” Tackett v. M & G Polymers,
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`USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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`555-56 (2007)).
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`The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief
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`above the speculative level—“does not ‘require heightened fact pleading of specifics, but only enough
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`facts to state a claim to relief that is plausible on its face.’” Bassett v. Nat. Collegiate Athletic Ass’n,
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`528 F.3d 426, 430 (6th Cir. 2008) (quoting Twombly, 550 U.S. at 555-56). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009). Deciding whether a complaint states a claim for relief that is plausible is a “context-
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`specific task that requires the reviewing court to draw on its judicial experience and common sense.”
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`Id. at 679.
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`Consequently, examination of a complaint for a plausible claim for relief is undertaken in
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`conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires
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`only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific
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`facts are not necessary; the statement need only “give the defendant fair notice of what the . . . claim
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`is and the grounds upon which it rests.”‘” Gunasekera, 551 F.3d at 466 (quoting Erickson v. Pardus,
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`551 U.S. 89, 93 (2007)). Nonetheless, while “Rule 8 marks a notable and generous departure from
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`the hypertechnical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery
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`for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
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`III. Analysis
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`In Count Three, Bobnar alleges that AstraZeneca’s “inquiries into Plaintiff’s COVID-19
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`vaccination status as well as his past medical history respecting other vaccines and medications [were]
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`prohibited medical inquir[ies] and neither job related or consistent with business necessity.” (Doc.
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`No. 1, ¶ 77.) Bobnar alleges that the ADA prohibits such medical inquiries unless they are shown to
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`be job-related and consistent with business necessity. (Id. at ¶ 76.) Thus, according to Bobnar,
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`AstraZeneca violated the ADA by posing unlawful medical inquiries on its accommodation request
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`form that were not job-related or consistent with business necessity. (Id.) at ¶ 78.)
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`AstraZeneca argues that Count Three should be dismissed because, per the EEOC’s guidance
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`on COVID-19 vaccination inquiries, Bobnar was not subjected to an unlawful medical inquiry when
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`it asked about Bobnar’s COVID-19 vaccine status and whether Bobnar had received other vaccines
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`in the past. (Doc. No. 11-1, PageID# 57-58.) Further, AstraZeneca argues that even if its religious
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`accommodation form had contained a disability-related inquiry, Bobnar’s ADA claim nevertheless
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`fails because its questions were job-related and consistent with business necessity due to
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`AstraZeneca’s need to mitigate the serious health and safety risks that COVID-19 posed to its
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`employees and business operations. (Doc. No. 11-1, PageID# 57-59.)
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`Bobnar opposes AstraZeneca’s attempt to dismiss his Count Three. (Doc. No. 15.) Bobnar
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`argues that AstraZeneca’s inquiries as to previous vaccinations, other than the COVID-19 vaccine,
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`are prohibited under the ADA. (Id. at PageID# 92.) Bobnar argues that there is no case law, statute,
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`or EEOC guidance that allows an employer to inquire as to “prior use of medications or their
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`immunization history with respect to vaccines that are not the COVID-19 vaccine.” (Id. at PageID#
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`93.) Moreover, Bobnar argues, AstraZeneca’s inquiries were not job-related or consistent with
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`business necessity because employers are only permitted to make such inquiries or require
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`examinations “when there is a need to determine whether an employee is still able to perform the
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`essential functions” of his job, not when there is a “compelling” or “important” need to the employer.
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`(Id. at PageID# 94.)
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`The ADA provides that:
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`[a] covered entity shall not require a medical examination and shall not make inquiries
`of an employee as to whether such employee is an individual with a disability or as to
`the nature or severity of the disability, unless such examination or inquiry is shown to
`be job-related and consistent with business necessity.
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`42 U.S.C. § 12112(d)(4)(A). This subsection “protects all employees from medical inquiries,
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`regardless of whether they have a qualifying disability.” Bates v. Dura Auto. Sys., Inc., 767 F.3d 566,
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`573-74 (6th Cir. 2014) (citing Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 813 n. 6 (6th Cir.
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`2012)).
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`AstraZeneca argues, and Bobnar does not dispute, that AstraZeneca’s inquiry regarding
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`vaccinations is not a “medical examination” as that term is understood within the context of the ADA.
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`Thus, the question before the Court is whether AstraZeneca’s question about vaccination history was
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`an impermissible “medical inquiry.”
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`The ADA does not prohibit all medical inquiries, “but only those ‘as to whether such
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`employee is an individual with a disability or as to the nature or severity of the disability.’” Chancey
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`v. BASF Corp., No. 3:22-cv-34, 2022 WL 18438375, at *4 (S.D. Tex. Dec. 29, 2022) (quoting Conroy
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`v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003)). When faced with a question of
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`ADA statutory interpretation, the Sixth Circuit looks to the EEOC’s enforcement guidance as “very
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`persuasive authority.” Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 815 (6th Cir. 2012). The
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`relevant EEOC guidance provides that a “disability-related inquiry” is “a question (or series of
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`questions) that is likely to elicit information about a disability.” EEOC, Enforcement Guidance:
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`Disability–Related Inquiries and Medical Examinations of Employees Under the Americans with
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`Disabilities Act (ADA) Part B.2 (July 27, 2000), 2000 WL 33407181, at *3 (hereinafter the
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`“Enforcement Guidance”). The Enforcement Guidance provides the following examples of
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`disability-related inquiries:
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`• asking an employee whether s/he has (or ever had) a disability or how s/he became
`disabled or inquiring about the nature or severity of an employee's disability;
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` asking an employee to provide medical documentation regarding his/her disability;
`• asking an employee's co-worker, family member, doctor, or another person about an
`employee's disability;
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` asking an employee whether s/he currently is taking any prescription drugs or
`medications, whether s/he has taken any such drugs or medications in the past, or
`monitoring an employee's taking of such drugs or medications; and,
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` asking an employee a broad question about his/her impairments that is likely to elicit
`information about a disability (e.g., What impairments do you have?).
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`Id. According to the EEOC, examples of questions that are not likely to elicit information about a
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`disability and, therefore are not prohibited under the ADA include asking generally about an
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`employee’s well-being, asking an employee about nondisability-related impairments (e.g., asking an
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`employee how he broke his leg), and asking an employee whether he can perform job functions,
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`among other questions. Id.
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`Additionally, the EEOC published a series of Technical Assistance Questions and Answers
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`throughout the COVID-19 pandemic entitled “What You Should Know About COVID-19 and the
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`ADA, the Rehabilitation Act, and Other EEO Laws.” EEOC, What You should Know About COVID-
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` asking about an employee's genetic information;
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` asking about an employee's prior workers' compensation history;
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`19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated July 12, 2022), available at
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`https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-
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`other-eeo-laws (last accessed May 9, 2023) (hereinafter “EEOC COVID-19 Guidance”). Therein,
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`the EEOC advised as follows with respect to inquiries about vaccination status:
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`K.9. Does the ADA prevent an employer from inquiring about or requesting
`documentation or other confirmation that an employee obtained a COVID-19
`vaccination? (Updated 10/13/21)
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`No. When an employer asks employees whether they obtained a COVID-19
`vaccination, the employer is not asking the employee a question that is likely to
`disclose the existence of a disability; there are many reasons an employee may not
`show documentation or other confirmation of vaccination besides having a
`disability. Therefore, requesting documentation or other confirmation of vaccination
`is not a disability-related inquiry under the ADA, and the ADA’s rules about making
`such inquiries do not apply. . . .
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`Id.
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`For the following reasons, the Court concludes that AstraZeneca’s inquiries into Bobnar’s
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`vaccination history were not prohibited medical inquiries under the ADA. First, the Court notes that
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`Bobnar alleges in his Complaint that AstraZeneca violated the ADA by impermissibly inquiring about
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`his COVID-19 vaccination status (see Doc. No. 1, ¶ 77), but concedes in his Opposition that an
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`employer’s inquiry as to an employee’s COVID-19 vaccination status does not violate the ADA’s
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`prohibition on medical inquiries. (Doc. No. 15, PageID# 93.) The EEOC expressly advised that an
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`employer’s COVID-19 vaccination status is not a prohibited medical inquiry under the ADA. EEOC
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`COVID-19 Guidance, Part K.9; see also, e.g., Chancey, 2022 WL 18438375, *4 (“Simply put,
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`Chancey’s amended complaint fails to identify any action allegedly taken by BASF that constitutes
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`a disability-related inquiry or medical examination. Indeed, everything BASF is alleged to have done
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`is expressly authorized by the EEOC.”); Sharikov v. Philips Med. Sys. MR Inc., No. 1:22-cv-00326,
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`2023 WL 2390360, at *15 (N.D.N.Y. Mar. 7, 2023); Balow v. Olmsted Med. Ctr., No. 22-1668, 2023
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`WL 2776028, at *6 (D. Minn. Apr. 4, 2023). Thus, to the extent that Bobnar alleges in his Complaint
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`that AstraZeneca violated the ADA by inquiring about his COVID-19 vaccination status, Bobnar fails
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`to state a claim.
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`The Court now turns to the other part of Count Three, whether AstraZeneca violated the ADA
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`by asking on its religious exemption form: “For example, have you received other vaccines in the
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`past?” The Court concludes this question is not a prohibited medical inquiry under the ADA because
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`it is not likely to elicit information about a disability. See Enforcement Guidance, 2000 WL 33407181
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`at *3. The text of the ADA does not specify whether inquiries about vaccinations are prohibited. See
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`§ 12112(d)(4)(A). Moreover, the Enforcement Guidance does not indicate whether asking vaccines
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`is a prohibited medical inquiry. However, the EEOC’s COVID-19 guidance provides that inquiring
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`about COVID-19 vaccination status does not violate the ADA because such an inquiry is unlikely to
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`disclose the existence of a disability. See EEOC, What You Should Know About COVID-19 and the
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`ADA, the Rehabilitation Act, and Other EEO Laws, Part K.9 (Oct. 13, 2021). The Court concludes
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`that the EEOC’s rationale is applicable to inquiries regarding vaccinations other than for COVID-19,
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`which are generally available and not used to treat specific medical conditions. Kroll, 691 F.3d at
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`815. As the EEOC advised—and the instant case illustrates—there are many reasons an employee
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`may not be vaccinated that are unrelated to the employee’s medical and/or disability status. EEOC,
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`What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,
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`Part K.9 (Oct. 13, 2021). A “yes” or “no” answer to AstraZeneca’s question is unlikely to reveal the
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`existence of any disability because vaccines are generally available and may be declined for myriad
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`non-medical reasons. See also, e.g., Balow, 2023 WL 2776028, at *6 (concluding that the plaintiff
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`failed to state a claim that the defendant-employer’s vaccination mandate was a prohibited medical
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`inquiry because “a vaccine . . . is not an inquiry into whether Plaintiffs have a disability.”).
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`Bobnar argues that the EEOC’s COVID-19 guidance should be narrowly construed to only
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`allow employers to inquire as to COVID-19 vaccination history, but no other vaccination history.
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`The Court rejects this argument. Bobnar’s argument ignores the underlying rationale for the EEOC’s
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`guidance, that questions about vaccine history are unlikely to elicit information about the existence
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`of a disability because there is no correlation between either receipt or refusal of a vaccine and having
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`a disability. Vaccines are made broadly available to the public and may be received or refused for a
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`variety of reasons, many of which are non-medical in nature. Further, the EEOC broadly advises that
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`“there are many reasons an employee may not show documentation or other confirmation of
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`vaccination besides having a disability” and concludes that “requesting documentation or other
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`confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules
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`about making such inquiries do not apply.” EEOC, What You Should Know About COVID-19 and
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`the ADA, the Rehabilitation Act, and Other EEO Laws, Part K.9 (Oct. 13, 2021) (emphasis added).
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`On its face, this language is broader and does not limit “confirmation of vaccination” to only
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`confirmation of a COVID-19 vaccination.
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`The Court is also not persuaded by Bobnar’s argument that AstraZeneca made a prohibited
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`disability-related inquiry because a vaccine is a “drug” and the ADA provides that asking an
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`employee about whether he is currently taking any prescription drugs or medications is a prohibited
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`disability-related inquiry. (Doc. No. 15, PageID# 93-94.) The Enforcement Guidance expressly
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`provides that asking about an employee’s current use of “prescription drugs or medications”—i.e.,
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`drugs that are prescribed to a specific patient to treat a specific medical condition—is prohibited.
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`Enforcement Guidance, 2000 WL 33407181 at *3 (emphasis added). A prescription drug differs
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`from a vaccine because prescription drugs are prescribed by an individual’s medical provider to treat
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`a specific underlying medical condition and/or disability. If an employer inquired about an
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`employee’s prescription drug usage, the employer could extrapolate upon that information and likely
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`deduce the precise nature of the employee’s medical condition, which may reveal the existence of a
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`disability. Conversely, vaccines are not prescribed to treat specific existing medical conditions, but
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`to prevent the general public from contracting certain diseases. As discussed above, there are “many
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`reasons” an employee may or may not be vaccinated besides having a disability. See supra; see also
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`EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other
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`EEO Laws, Part K.9 (Oct. 13, 2021).
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`Finally, the Court rejects Bobnar’s assertion that AstraZeneca “wrongfully treated [his]
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`request for a religious accommodation as a request for a reasonable accommodation under the ADA.”
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`(Doc. No. 15, PageID# 90.) Bobnar’s argument on this point is somewhat confusing. Bobnar claims
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`that AstraZeneca’s “medical inquiry . . . was improper because [Bobnar] never requested an
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`accommodation under the ADA.” (Id. at PageID# 91.) He further asserts that he could perform the
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`essential functions of his job at all times, and that he did not pose a direct threat to himself or others.
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`(Id. at PageID# 91-92.) However, there is no indication that AstraZeneca considered Bobnar to be
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`disabled or interpreted Bobnar’s request for a religious accommodation to be a request for a
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`reasonable accommodation based on disability. Indeed, AstraZeneca provided Bobnar with an
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`exemption form clearly labeled “Religious Reasonable Accommodation Form,” which Bobnar
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`attached to his Opposition. (See Doc. No. 15-1, “Religious Reasonable Accommodation Request
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`Form.”) Bobnar’s citation to various authorities on reasonable accommodations under the ADA is
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`inapposite. Furthermore, the ADA protects all employees, irrespective of disability, from employers’
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`prohibited medical inquiries. § 12112(d)(4)(A). Even if AstraZeneca’s inquiry was a prohibited
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`medical inquiry (and it is not), it does not mean that, by asking about Bobnar’s vaccination history,
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`AstraZeneca considered Bobnar disabled. See, e.g., Roe v. Cheyenne Mountain Resort, 124 F.3d
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`1221, 1228-29 (10th Cir. 1997) (plaintiff had standing under the ADA to challenge her employer’s
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`requirement that all employees disclose all prescription drug usage because § 12112(d)(4)(A) applies
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`to all employees and “does not require her to prove that she is an individual with a disability”).
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`Accordingly, the Court concludes that AstraZeneca’s inquiry about Bobnar’s previous
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`vaccination history was not a prohibited medical inquiry under the ADA. Because AstraZeneca’s
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`question about Bobnar’s vaccination history was not a prohibited medical inquiry, the Court need not
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`address AstraZeneca’s alternative argument that the inquiry was job-related and consistent with
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`business necessity. Bobnar’s Count Three fails as a matter of law.
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`IV. Conclusion
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`For the reasons set forth above, Defendant’s Partial Motion to Dismiss (Doc. No. 11) is
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`GRANTED.
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`IT IS SO ORDERED.
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`Date: May 9, 2023
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` s/Pamela A. Barker
`PAMELA A. BARKER
`U. S. DISTRICT JUDGE
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`12
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