the next case on for argument is no while versus wal mart stores pharmacists and pharmacists managers would have to be certified to administer immunizations getting an exemption from this newly stated requirement and he was referred to wal mart's seven step process for securing an accommodation  followed that process he filled out the forms required he secured his physician's certification the nature and disabling determination the exemption he had requested that a document appears in the in the joint append to at that time it was not the administration of injections was not new hires to have this certification and continuing employees to get it by october yes your honor the october there was no obligation on him to  either administer injections or to get the certification to administer injections he was he was obligated they the the april announcement describes this as minimum qualification for all pharmacists and he was he was he was given until october to secure the certification exam so i'm just trying to understand until october he was perfectly entitled not to get his certification if he didn't get the certification he couldn't administer injections that right that's press as i understand it yes your honor when we're not certified you can't do it so as of july he was not obligated as part of his job to give an injection if somebody walked in the store and said i want to get an immunization and takes a needle to do it here and he said no i'm sorry i'm not certified to do that he would not be in breach of any of his employment obligations that's as i understand  but if he had not had a disability if there was a fellow pharmacist there who didn't have this disability and a customer came in and asked for an injection and that pharmacist had was certified he could give the injection it would not that person could and wal mart would expect him to if he said no sorry i don't feel like doing it today because only that guy could get fired well  expected to give injections even in july but mr nowell was told it's not at least as of now part of your required job description you don't have to do that oh yes  would he would have to be certified in order to be permitted right to do it but he doesn't have to be certified until october that's that's correct but if he does not secure exemption prior to october he's out of work his his livelihood is on the line and it is this letter say i have it here it appears you have say that you don't have to get the certification by approved but there's two problems first is judge lynch has pointed out the certification requirement didn't kick in until oct sixteenth two thousand and sixteen so as of july he wasn't required to have the certification so that while i am going to have some questions for wal mart is to why they sent that letter july but as of july he wasn't obligated to be certified to give immunizations secondly in the july nineteenth two thousand and sixteen letter wal mart reserves its right to revisit the approval that is to say the accommodation quote at any time close quote so it wasn't for all time they didn't grant the accommodation of all time they reserved their right to revisit it is they deemed appropriate and it seems like they decided to revisit it as of october sixteenth when the certification kicked in the certification requirement and they you that you have immunization certification that was that was that requirement was imposed in april and that the district court in effect of an october well it indeed he was given time in order to  become certified there's a process you have to go through to be certified and for reasons that we don't know pharmacists managers were were given additional time  certified but the district court recognised in its memorandum of decision that the what what occurred in october and november was was just a restatement of what was announced in april there was any change in the requirements for mr knowles position were that's the reason why he sought an exemption because he can't do it and he had to secure that exemption before october worst case scenario just one of the way at the time of the district court's determination of the twelve the six most is that there's at the very least ambiguity how you balance out this letter and then what effectively went on later and the district court chose to try to resolve those issues as opposed to  characterization of an employment requirement as essential and also into the when you that the position is performed in practice none of that took place  is that what you're saying they don't have that they they can't decide that they want all their pharmacists to give immunizations no that's them that's not my argument at all walmart can certainly require employee to wear red ties every day if they want the question is whether that's an essential function and the employer's announcement that wearing red ties every day is an essential function is not the end of the inquiry and that's what this court has said and the milling case is a very good example of that that was a a rule fifty six case in which the question of whether the plaintiffs  inability to regularly meet a start time for work was contrary to an essential function of showing up for work and  this court said that the district court did not engage in an adequate factual inquiry about that and you want essentially the opportunity to retry the stevens  stevens stevens case involved a very very similar policy the rite aid had right i want the opportunity to try the stevens case i don't want to retry it evens was tried and d as a matter of law that all pharmacists must perform immunization but that pharmacist notwithstanding that for the entirety of his career just like  no through july and beyond till october had perfectly well complied with all the requirements of the job without administering injections so what did we what did change its policy because of competitive conditions in the pharmacy industry and require that injections begin its unquestionably what when i was on in the background but it remains that we're not dealing with a statutory claim goes is whether the performance of immunizations is an essential function and that is a fact dependent inquiry which the district court did not engage in the district court accepted the the job description offered up by wal mart as the end of the discussion even recognizing that there was that there there was an allegation in the complaint and the documents supporting that allegation that that suggested a contrary conclusion but but the district court  was confident to find as fact in the ruling on a twelve b six motion that this the performance of immunizations was an essential function and that was ever to respond any questions that that army have a question for you sent a letter july nineteenth two thousand and sixteen saying that the administration of immunizations is not considered to be an essential function of your to at that point in time because the you know but it doesn't it one would think have been sent out the policy in april that there would be some acknowledgment offered a reference to it in the july nineteen letter but there isn't it just flat out that it's not an essential function of europe was position period although the notice that was sent out in april explain that that new pharmacists would be required to be able to give immunizations right away but incumbent pharmacists would not be required to do that until october twenty sixth and so the time that he requested a  modification it was not after the april note it was after the april notice but before he was required before it was a requirement of his position so the letter that was sent to him in july explained that it wasn't considered an essential function at that point in time he wasn't required to do and wal mart at that time to at least acknowledge that there was this policy been issued back in april and that as of october sixteenth it was going to be viewed as an essential function would need to be the hoo wal mart to acknowledge the new policy rather than just flat out say that the administration of a musician is not an essential function of your position while you're on it there may have been a more perfect way to do it however when when they sent out the notice they reserve the right to make changes that any point in time depending on the business needs of the company depending on how it impacted other employees excuse me could someone read that reservation if we're going to call it that as prospect of and wal mart having already announced its policy it seems to me or at least there's some question having already announced its policy this reasonably could be read as saying there's the policy we're not making a prospective change the policy is you folks who are already in the field have to get it by october we're making an exception for you but you're not you're not telling them after this the issue i think is does it raise an issue of fact i mean your adversary emphasize that this was decided on a rule twelve b six motion and the question i have is why doesn't the july nineteenth two thousand and sixteen letter raising the issue of fact i understand you have an explanation and the explanation is that while there's a couple explanations one is the certification requirement and kick in until oct so it wasn't in place in july and then secondly walmart reserved its rights but the problem is wal mart said it's not an essential function of your position and that's the problem and i think and i don't disagree with you on that point of law however if you look at the allegations in the complaint together with the documents that are incorporated by reference i think that the district court judge appropriately alteration of his job description in other words what the complaint alleges is that he was seeking an accommodation with respect to the new policy not with respect allow an employee to perform these are right on but it often is not what he was asking but if he requests an exemption prospectively from a prospective policy and he is told you have that it's granted because it is not an  essential function of your job does that not raise some kind of issue as to whether it is or is the new policy is or is not essential i would disagree with you on that point because it is it is clear  record that that the announcement came out in april that that he was not required to give immunizations until october so as of july it was not an essential function of his job so weak so he at that stand that but he didn't according to the complaint now i notice that neither side has apparently given us in the appendix an actual copy of what he submitted in requesting an accommodation is that right all that i see here are the is the approval of the request but the complaint says that it was a request for an exemption from the alteration of his job description not a request for an accommodation in july under the present circumstances you know there there at least is an allegation now maybe if as you say this incorporates documents by reference and maybe if the request to  the accommodation people in h r didn't make clear that's what he was requesting that would support the view that maybe this isn't how it should be taken but the allegation is that that's what he was asking for and then say so from july to october you have this exemption it says your request is granted and the complaint alleges that the request was prospective and why wouldn't they say you don't need to request an accommodation because it's not a requirement well it does say that it's not and it's not an essential function so in essence that is what they're saying but i mean you didn't say you don't need to request it you don't even after ask us because it's not there it's you know we're not telling you to do anything but they didn't say that so why isn't that why doesn't that fact alone raise a question of fact to be determined by a trial or a fact or at least be fleshed essential functions of the job with or without a reasonable accommodation what he alleges is that this was a requirement of the job and then he couldn't do it you know the question is whether it is an essential function of the job i take it that in july already it was a function of the job that if you didn't have a disability if you weren't requesting or receiving an accommodation if he got a certification in july i take it he would be in wal mart didn't start offering injections and oct it was not a requirement of his job it was a requirement of a new pharmacists who joined and after i thought well wait so it's if another pharmacist said oh this is great i'll go out and get my certification got a certification it's july the nineteenth two thousand and sixteen in walk somebody and ask for an injection does one not offer that service in july price sixteen that's not clear from the record and say they what it says is that they were required to be certified the new pharmacists were required to be certified as a people twenty sixteen but then we're back to the issue of why is there any issue of an accommodation if it is not any function of his job essential or otherwise if no pharmacist in wal mart gives injections then what possibly could they be giving an accommodation for except under the new policy when they start giving injections but that's why the letter said that at that point in time it was an essential function in the also reserve the right to amend it at any point in time it doesn't say at this time it doesn't even acknowledge that this big up policy announcement in april it just flat out says it's not on the central function of your position it doesn't say at this time it just doesn't case even though that letter might not say it well i get it i thought you were going to say it does say this approval is subject to further review in case your job description is revised in the future that's kind i take it his job description as it existed before actually november when the official job description a new job description is issued i take it the job description in july apparently did not contain that essential function language you say that's correct i mean i we have to infer that though don't we because we don't have a copy of whatever the job description was in july but based on the allegations of plaintiff's complaint together with the documents that are incorporated appendix of the the district court made the observation that the november seventeenth job description which which post just one one one thing with respect to the july nineteenth letter but the question whether performing immunizations is an essential function is  contract wal mart has agreed to accommodate my client and exempt them from performing that function whether it is as a matter of law but essential u i don't see how you have a contract claim that all because the promise is only we're letting you do this now but we reserve the right to change it any time in the future that doesn't that how is there a promise that you know october in november in the in the next day we're not going to change our minds about this there is no period in the letter after revisit this approval at any time the walmart reserved the right to review this approval for specified purposes to review the effectiveness of the accommodation its impact on business operations and coworkers and or if there is a material change in either your situation or in the business needs of the facility that's it that's a second reservation  first reservation is the approval is subject to further review in case your job description is revised in the future then there's another reservation to get rights that even if your job description is not changed because i would take it that whether they say in the job description it's essential or not you know what what i might well what one issue that one argued was made in the stevens case was that it there should be an inquiry and there was inquiry and the jury made a finding that they could have moved him to a different store where there were multiple pharmacists or something like that right there  there are different circumstances whether it's an essential function or not it could become an essential function if he is the only pharmacist within x miles or something like that so they were even before they changed the job description and without changing the job description all these other things in paragraph three of the letter could happen it could just turn out to be too difficult to cover the that store or something like that it's entirely possible  he would not have to give injections by sending this letter apart from the vermont statute no i'm saying that wal mart said you are exempt from performing  immunizations unless in the future we determine that any of these these later circumstances  require us to yes but i'm saying why can't we why do you read the second reservation of rights in paragraph three as a condition of the first reservation of rights in paragraph one which just says this is that that the the the requirement that he perform immunizations was in place in april ok thank you thank you thank you both will reserve decision