Eleventh Circuit Clarifies that Unvaccinated Status Is Not a “Perceived Disability” and Neutral COVID-19 Safety Protocols Do Not Constitute Religious Discrimination

Introduction

In Seth Schmidt v. Disney Parks, Experiences and Products, Inc. (cons. with Pajer, Cribb, and Gibbons), the U.S. Court of Appeals for the Eleventh Circuit confronted a wave of employment-law challenges sparked by workplace safety measures adopted during the COVID-19 pandemic. Four Disney employees who refused to disclose their vaccination status—and consequently became subject to Disney’s “Augmented Health & Safety Protocols”—claimed violations under Title VII of the Civil Rights Act, the Florida Civil Rights Act (FCRA), the Americans with Disabilities Act (ADA), and parallel retaliation provisions. They further contended that the district court erred by dismissing their pleadings without leave to amend.

The Eleventh Circuit (per curiam) affirmed dismissal on all counts, producing a precedential clarification on two pivotal questions:

1. Can an employer’s treatment of unvaccinated workers amount to regarding them as “disabled” under the ADA?
2. Do neutral mask-and-distance rules, triggered by failure to verify vaccination status, create religious discrimination or retaliation liability under Title VII / FCRA?

The Court answered both in the negative, relying heavily on existing Supreme Court and circuit authority but for the first time transplanting those principles into the COVID-19 context.

Summary of the Judgment

• Claims asserted: disparate treatment and disparate impact religious discrimination (Title VII & FCRA); ADA “regarded-as” disability discrimination; retaliation under all three statutes; request for leave to amend.
• District court disposition: Rule 12(b)(6) dismissal; no leave to amend.
• Eleventh Circuit holding:
  • Neutral protocols applied to all unvaccinated employees (religious or not) do not support disparate treatment.
  • Plaintiffs pleaded no facts showing statistical—or even anecdotal—religious disparity; disparate impact fails.
  • Unvaccinated status or potential future illness is not a disability, nor is it a “perceived” disability under the ADA (extending EEOC v. STME, LLC to COVID-19).
  • No protected opposition = no retaliation.
  • Leave to amend properly denied for failure to move within Rule 16 scheduling order and for inadequate proffer of proposed amendments.
• Outcome: Affirmed in full.

Analysis

Precedents Cited and Their Influence

1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009)
   – Provided the “plausibility” threshold for pleading. Plaintiffs’ conclusory allegations of unequal treatment and statistical disparity fell short.
2. EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019)
   – Pre-COVID case where fear of potential Ebola infection was held not to be a “regarded-as” disability. Court transplanted this reasoning to vaccine refusal, holding that the ADA protects only current/actual impairments, not potential future ones.
3. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015); Bailey v. Metro Ambulance, 992 F.3d 1265 (11th Cir. 2021)
   – Illuminated dual theories of religious discrimination: “traditional” and “reasonable-accommodation.” Court found neither pled because protocols did not conflict with articulated beliefs, and no accommodation from protocols was ever sought.
4. Johnson v. Miami-Dade County, 948 F.3d 1318 (11th Cir. 2020); Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010)
   – Framework for retaliation: protected activity + adverse action + causation. Plaintiffs could not show they held an objectively reasonable belief that Disney’s protocols violated Title VII.
5. Pleading-stage mechanics: Chabad Chayil v. Miami-Dade School Bd., 48 F.4th 1222 (11th Cir. 2022); Sosa v. Airprint Sys., 133 F.3d 1417 (11th Cir. 1998)
   – Reaffirmed that requests to amend embedded in responses to motions to dismiss are procedurally insufficient once a Rule 16 schedule is in place.

Legal Reasoning

1. Disparate Treatment
   – Plaintiffs conceded protocols applied to all unvaccinated workers regardless of reason. Because the challenged rule was religiously neutral, plaintiffs could not demonstrate differential treatment “because of” religion.
   – Reasonable-accommodation theory failed: the only demonstrated conflict was with the rescinded vaccine mandate, not with the ongoing mask/distancing rules, and no accommodation from the latter was requested.
2. Disparate Impact
   – Complaint lacked factual allegations (statistics or otherwise) suggesting that Christians—or any religious group—were disproportionately unvaccinated. Thus causal nexus between neutral protocol and religion was implausible.
3. ADA Perceived Disability
   – Court made a categorical clarification: status predicting future infection risk is not an impairment; employer concern over contagiousness is concern over potential condition.
   – By equating unvaccinated status with “regarded as contagious,” plaintiffs tried to stretch ADA beyond its textual confines; STME foreclosed that move.
4. Retaliation
   – No statutorily protected activity: An employee must at least reasonably believe the employer’s conduct is unlawful. Because the underlying discrimination claims were implausible, any opposition to the protocols could not be objectively reasonable.
5. Denial of Leave to Amend
   – Rule 16(b) “good-cause” standard supersedes the liberal Rule 15(a) regime once a scheduling order issues. Plaintiffs neither moved timely nor provided proposed amendments; refusal not an abuse of discretion.

Impact on Future Litigation

• COVID-19 & Post-Pandemic Policies: Employers within the Eleventh Circuit (Alabama, Florida, Georgia) have firmer footing to impose differential safety measures on unvaccinated staff so long as the rules are religiously neutral and apply to all unvaccinated employees equally.
• ADA Scope: The decision cements a bright-line rule: perceiving an employee as posing a future risk of infection is not a “regarded-as” disability. Plaintiffs must plead an existing impairment (or perception thereof)—not mere susceptibility—to invoke the ADA.
• Pleading Strategy: Generic references to “large numbers” or “many Christians” will not satisfy Twombly/Iqbal. Future plaintiffs will need concrete statistical or comparative data at the complaint stage for disparate-impact theories.
• Litigation Procedure: Eleventh Circuit continues strict enforcement of Rule 16 scheduling orders. Parties must move formally and timely for leave to amend; including a line-item request in opposition papers will rarely suffice.

Complex Concepts Simplified

• “Disparate Treatment” vs. “Disparate Impact”:
  – Disparate treatment = intentional different treatment because of a protected trait.
  – Disparate impact = facially neutral rule that falls harder on a protected group, even without intent.
• “Regarded as” Disability: Employer mistakenly believes employee has a current impairment; the ADA does not cover fear that the employee might become impaired later.
• Rule 12(b)(6): Motion to dismiss for failure to state a claim; court assumes facts are true but asks whether they plausibly show legal entitlement to relief.
• Rule 16(b) Scheduling Order: After deadlines are set, amending pleadings requires “good cause”—a higher bar than the pre-scheduling liberal standard.

Conclusion

The Eleventh Circuit’s consolidated decision delivers a clear message for employers and employees navigating the evolving landscape of workplace health measures:

1. Merely being unvaccinated—or viewed as potentially contagious—does not trigger ADA protection.
2. Religiously neutral safety protocols applicable to all unvaccinated workers seldom constitute religious discrimination, absent evidence of disparate application or conflict with specific religious tenets coupled with an accommodation request.
3. Retaliation claims rise and fall with the objective reasonableness of the underlying discrimination complaint.
4. Procedural rigor matters: litigants must respect scheduling orders and articulate concrete amendments when seeking leave to re-plead.

Collectively, these holdings fortify employer discretion in implementing neutral COVID-19 (and analogous health) protocols while demarcating the statutory limits of disability and religious discrimination law. Future plaintiffs challenging such policies will need significantly more detailed factual allegations—and, where appropriate, timely accommodation requests—to survive early dismissal in the Eleventh Circuit.