Suit after failure to give COVID info nixed

A man who was terminated for failure to provide his employer information about his COVID-19 status or that of a family member who tested positive cannot sue the company, a federal judge in Norfolk has ruled.

The plaintiff sought to use the Health Insurance Portability and Accountability Act of 1996, or HIPAA, to bolster his claim, arguing that it would have been a HIPAA violation to share information. But the judge found the man was not a covered party under that statute and dismissed his claim.

The case is Wells v. Enterprise Leasing Co. of Norfolk/Richmond LLC (VLW 020-3-568). U.S. District Judge Raymond A. Jackson wrote the opinion.

Anonymous tip

The plaintiff, Wells, worked for Enterprise. In late March of this year, his boss, Mann, called him and said the company had received an anonymous tip that he had been exposed to a family member has tested positive for COVID-19.

Wells told Mann he was going to the doctor the following week. Mann asked Wells to keep the company informed about his status and that of his family member, who was not a company employee.

On April 8, Enterprise fired Wells for “gross insubordination” for his failure to get a COVID test and to provide info about his family member’s status.

Wells sued, seeking $250,000 in damages and $200,000 in punitives. Enterprise removed the case to federal court.

HIPAA claim

Wells based his suit on HIPAA, arguing that it would have been a criminal act to share the medical information of his relative.

But Jackson rejected this claim, noting that HIPAA makes it wrong for “covered entities” to share medical information.

That term is defined narrowly, he wrote, to include health care plans, health care clearinghouses and health care providers.

The question of whether HIPAA covers an individual has arisen before in the 4th U.S. Circuit Court of Appeals, and that court dismissed that effort.

Wells further argued that he could have been liable for “aiding and abetting” a HIPAA violation.

Jackson made short work of this approach as well.

Wells would not have been liable for disclosing his own health information, the judge wrote. And the company did not coerce him to disclose his medical records without consent. Enterprise asked him to keep the company “posted on his status.”

Nor did Enterprise ask Wells to disclose the relative’s information without that person’s consent, he noted.

“Based on his own complaint, Plaintiff was merely asked by Enterprise to keep them updated about his and his family members’ COVID-19 status for the safety of other employees,” the judge said.

“Plaintiff was only asked to inform Enterprise about whether he or his family member were positive/negative for COVID-19, without needing to identify his family member specifically or to disclose a record,” Jackson wrote.

State law claim

Wells sought further to state a claim under state law. In the Bowman v. State Bank of Keysville case, the Supreme Court of Virginia in 1985 allowed a narrow exception to the at-will employment doctrine for employees “discharged in violation of public policy.”

The long line of Bowman cases since have required that the plaintiff identify a Virginia statute that articulates the commonwealth’s public policy.

Jackson wrote that Wells sought to use a federal statute, HIPAA, rather than a state law.

As a result, he granted Enterprise’s motion to dismiss the complaint.

Wells was represented by Wayne B. Montgomery. Counsel for Enterprise were Scott A. Seigner and Alexander T. Marshall.