Tenth Circuit Clarifies: Neutral COVID-19 Vaccination Attestation Is Not an ADA “Medical Inquiry,” and Termination for Noncompliance with a Generally Applicable Vaccine Policy Does Not State ADA Retaliation

Introduction

In Bereznak v. Arrow Electronics, Inc., No. 24-1394 (10th Cir. Aug. 27, 2025), the Tenth Circuit affirmed the dismissal of a pro se former employee’s Americans with Disabilities Act (ADA) claims arising from his termination after refusing to disclose his COVID-19 vaccination status. The case addresses three ADA theories: (1) disability discrimination under “regarded as” and “record of” prongs; (2) ADA retaliation premised on opposition to the employer’s vaccination policy; and (3) violation of the ADA’s restrictions on disability-related medical inquiries under 42 U.S.C. § 12112(d)(4)(A).

The decision is marked “not binding precedent,” but—consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1—may be cited for its persuasive value. It provides a clear, structured application of modern pleading standards and ADA doctrinal boundaries in the context of pandemic-related workplace policies.

Summary of the Judgment

The Tenth Circuit affirmed the Rule 12(b)(6) dismissal of all claims:

• Disability Discrimination: The plaintiff expressly disclaimed any challenge on appeal to the district court’s rejection of his “regarded as” and “record of” disability theories under 42 U.S.C. § 12102(1)(B)–(C); those issues were deemed waived, and dismissal was affirmed.
• Retaliation: The plaintiff failed to plausibly allege but-for causation between his opposition to the vaccination policy and his termination. The pleadings themselves showed he was fired for noncompliance with a neutral, generally applicable policy, which does not constitute retaliation under the ADA.
• Medical Inquiries: Arrow’s vaccination attestation requirement was not a prohibited “disability-related” inquiry under § 12112(d)(4)(A). Being unvaccinated—or even being perceived as having COVID-19—does not, without more, equate to a disability for purposes of that provision.

The court reiterated that at the pleading stage the plaintiff bears the burden to state a plausible claim; an employer has no threshold obligation to demonstrate ADA compliance in a motion to dismiss.

Analysis

Precedents Cited and Their Influence

• Serna v. Denver Police Department, 58 F.4th 1167 (10th Cir. 2023): Confirmed the de novo standard of review for Rule 12(b)(6) dismissals. This positioned the appellate panel to evaluate the complaint’s plausibility anew without deference to the district court’s legal conclusions.
• Brooks v. Mentor Worldwide LLC, 985 F.3d 1272 (10th Cir. 2021), and Ashcroft v. Iqbal, 556 U.S. 662 (2009): Reaffirmed the plausibility standard: courts accept well-pleaded facts as true but not legal conclusions or conclusory assertions. This was central to rejecting the plaintiff’s bare allegation that his termination was retaliatory.
• Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008): The court liberally construes pro se filings but does not serve as the litigant’s advocate. This guided the court’s treatment of the pleadings while declining to supply missing legal or factual theories.
• Lincoln v. BNSF Railway Co., 900 F.3d 1166 (10th Cir. 2018): Articulated the prima facie elements for ADA retaliation and emphasized that causation must be more than speculation or conjecture. This was decisive in finding the complaint failed to plausibly allege but-for causation.
• University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013): Established the “but-for” causation standard for retaliation claims—adopted here for ADA retaliation—requiring that the adverse action would not have occurred in the absence of the protected activity. This heightened causation threshold foreclosed the plaintiff’s theory based on a neutral policy violation.
• Papasan v. Allain, 478 U.S. 265 (1986): Courts need not accept as true legal conclusions masquerading as factual allegations. The panel invoked this to disregard the unadorned assertion that the firing was retaliatory.
• Sharikov v. Philips Medical Systems MR, Inc., 103 F.4th 159 (2d Cir. 2024): Persuasive authority on two fronts: (1) actions taken under generally applicable policies, without more, do not deter a reasonable employee and therefore do not plausibly constitute retaliation; and (2) disease-prevention measures (like vaccine policies) are not tantamount to assumptions of disability, and being unvaccinated or perceived as having COVID-19 is not, by itself, a disability under the ADA. The Tenth Circuit aligned with these principles.
• Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012): Cited to underscore that the pleading burden rests with the plaintiff; employers are not required to prove ADA compliance at the motion-to-dismiss stage.
• Statutes: 42 U.S.C. § 12102(1)(B)–(C) (definitions of “record of” and “regarded as” disability), 42 U.S.C. § 12112(d)(4)(A) (limits on disability-related inquiries); and 28 U.S.C. § 1291 (appellate jurisdiction).

Legal Reasoning

• Procedural posture and standard: Applying de novo review under Serna, the court assessed whether the complaint plausibly stated claims under Iqbal/Brooks, granting liberal construction to the pro se pleadings (Yang) but refusing to accept legal conclusions (Papasan).
• Waiver of discrimination theories: The plaintiff abandoned any challenge to the district court’s dismissal of “record of” and “regarded as” disability discrimination theories. The Tenth Circuit treated this as an affirmative waiver and affirmed without further analysis.
• ADA retaliation—causation and neutral policies: The core deficiency was causation. Under Nassar and Lincoln, the plaintiff had to plausibly allege that his protected ADA activity was the but-for cause of termination. His own allegations showed he was discharged for failing to report vaccination status by a uniform deadline. Citing Sharikov, the court emphasized that adverse actions stemming from generally applicable policies do not, without allegations of targeted or hostile conduct, plausibly deter protected activity or establish retaliation. Conclusory claims of “retaliation” were insufficient (Papasan).
• No burden shift to employer at pleading stage: In a critical footnote, the court rejected the plaintiff’s attempt to saddle the employer with an early burden to show ADA compliance. Under Khalik and Lincoln, plaintiffs must plead facts that, if true, state a plausible claim; the employer need not justify its policy in a Rule 12(b)(6) posture.
• ADA medical-inquiry claim—narrow scope of § 12112(d)(4)(A): Section 12112(d)(4)(A) forbids only disability-related inquiries unless job-related and consistent with business necessity. The panel agreed with the district court that a vaccination attestation requirement is not a disability-related inquiry, and that being unvaccinated or perceived as having COVID-19 does not, by itself, implicate the ADA’s disability framework. Because the threshold “disability-related” requirement was not met, the court did not need to reach the “job-related/business necessity” exception.
• Pro se litigant guardrails: While filings are construed liberally, courts cannot invent legal theories or infer facts that are not pleaded. The plaintiff’s legal assertions—e.g., that the policy itself was retaliatory or that termination based on noncompliance must be causally linked to protected activity—were not supported by plausible factual content.

Impact and Implications

• For employers: The decision supports the legality, under the ADA, of neutral vaccination-status attestation policies and discipline for noncompliance, so long as policies are:
  • Generally applicable and not selectively enforced;
  • Not framed or used as a proxy for disability-related inquiries;
  • Implemented without targeting individuals for engaging in ADA-protected activity.
  Employers should still maintain appropriate accommodation pathways for employees who raise ADA-qualifying disabilities and keep any collected vaccination-status information confidential.
• For employees and litigants: To state a viable ADA retaliation claim, plead:
  • Concrete “protected activity” under the ADA (e.g., requesting a reasonable accommodation for a disability or opposing disability discrimination), not just generalized policy objections;
  • Decisionmaker knowledge of the protected activity;
  • Specific facts supporting but-for causation (timing plus additional indicia such as differential treatment, targeted hostility, deviations from policy, or admissions); and
  • Adverse actions beyond uniform enforcement of neutral policies.
  Simple disagreement with a health-and-safety policy, unmoored from ADA-protected activity and without plausible causal facts, is unlikely to survive a motion to dismiss.
• Medical inquiry doctrine going forward: The opinion narrows the use of § 12112(d)(4)(A) by emphasizing its disability-related threshold. Employers may generally ask about vaccination status without triggering the provision. Requests for underlying medical conditions, diagnoses, or disability-specific information remain restricted and require the statutory “job-related and consistent with business necessity” justification.
• Alignment with other circuits: By expressly relying on Sharikov, the Tenth Circuit’s reasoning harmonizes with the Second Circuit on two issues: neutrality of policy in retaliation analysis and the non-disability nature of vaccination status/COVID-19 perception for purposes of § 12112(d)(4)(A). This inter-circuit convergence enhances the persuasive force of the approach nationally.
• Pleading practice and appellate preservation: The case underscores two practical points:
  • Under Iqbal, plaintiffs must plead facts, not labels or conclusions;
  • Issues not argued on appeal are waived; litigants should be careful not to disclaim viable theories inadvertently.
• Open questions and limits: The court did not address whether particular COVID-19-related conditions could, in given circumstances, qualify as disabilities. Nor did it assess the “job-related/business necessity” defense because the inquiry did not reach disability-related status. Disparate application of a vaccine policy, or use of such a policy as pretext to target disability-based accommodation requests, could lead to different outcomes on a different record.

Complex Concepts Simplified

• “Regarded as” and “record of” disability (42 U.S.C. § 12102(1)(B)–(C)): “Record of” means documented history of a qualifying impairment; “regarded as” means the employer treated the person as if they had such an impairment. These were waived on appeal here.
• ADA retaliation: To claim retaliation, a plaintiff must show: (1) they engaged in ADA-protected activity; (2) they suffered an adverse action; and (3) but-for causation—the adverse action would not have occurred without the protected activity. Enforcement of a neutral policy against everyone generally does not prove retaliation.
• But-for causation (Nassar): A strict standard requiring a direct causal link. If the same adverse action would have happened regardless of the protected activity (e.g., because of noncompliance with a uniformly enforced policy), the claim fails.
• Disability-related medical inquiries (42 U.S.C. § 12112(d)(4)(A)): Employers cannot ask employees about disabilities unless the inquiry is job-related and consistent with business necessity. Asking whether someone is vaccinated is generally not a disability inquiry; asking about diagnoses or conditions typically is.
• Generally applicable policy: A rule applied equally to all employees. Adverse actions based on such policies are typically not evidence of retaliation absent facts showing targeting, hostility, or selective enforcement.
• Pleading standard (Iqbal/Brooks): Complaints must allege enough factual detail to make a claim plausible, not just possible. Courts disregard bare legal conclusions.
• Pro se liberal construction (Yang): Courts read pro se complaints generously but will not create claims or facts that were not pleaded.

Conclusion

Bereznak v. Arrow Electronics clarifies, as persuasive Tenth Circuit authority, that:

• A neutral, across-the-board vaccination attestation requirement is not a prohibited “disability-related” medical inquiry under the ADA;
• Termination for noncompliance with such a neutral policy, without more, does not plausibly allege ADA retaliation because but-for causation is lacking; and
• Plaintiffs shoulder the pleading burden; employers need not prove ADA compliance at the Rule 12(b)(6) stage.

The ruling fits within a growing body of appellate guidance cabining ADA claims in the pandemic-policy context to genuinely disability-related disputes and factually supported retaliation theories. While nonprecedential, it offers a clear roadmap for structuring, defending, or pleading ADA claims involving vaccination policies and related workplace safety measures.