What to do when a worker refuses to give proof of COVID-19 vaccine status

Employee repeatedly fails to provide proof of status or weekly test results

What to do when a worker refuses to give proof of COVID-19 vaccine status

In a recent case, an ex-employee sued her former employer under the Confidentiality of Medical Information Act. She alleged unauthorized use of her medical information and discrimination due to her refusal to authorize release of such information.

The plaintiff in the case worked at the Sequoia Union Elementary School for decades. She offered in-person classroom assistance for children with special needs and children whose primary language was Spanish.

An August 2021 public health order required K-12 schools to verify the COVID-19 vaccination status of all school workers and required schools with workers not providing proof of complete vaccination to report the results to local public health departments.

The health order aimed to minimize the risk that workers would transmit the virus while on K-12 campuses and aimed to prevent the endangerment of students, most of whom were not yet vaccinated and the youngest of whom were not yet eligible to receive the vaccine.

Read more: California drops COVID-19 requirement for state employees

In September and October 2021, the Sequoia Union Elementary School District, the school, and its principal and superintendent started to require its workers to give proof of their COVID-19 vaccination status.

The plaintiff repeatedly refused to present proof of her vaccination status or weekly test results. She told the principal that she did not consent to him obtaining or disclosing her medical information. The principal reminded her that the school had an obligation to comply with the health order.

Toward the end of October 2021, the defendants notified the plaintiff that she would be on unpaid leave until she complied with the test-or-vaccinate requirements. She allegedly received a formal statement of dismissal signed by the principal in July 2022.

Her termination prompted her to sue the defendants under the Confidentiality of Medical Information Act, which was a part of California’s Civil Code.

Employer wins at appeal court

The trial court rejected all the plaintiff’s claims. In the case of Rossi v. Sequoia Union Elementary School et al., the California Court of Appeal for the Fifth District affirmed the decision of the trial court.

First, the appellate court discussed the plaintiff’s discrimination claim under section 56.20(b) of the Civil Code. This section prohibited discrimination against an employee in the terms or conditions of employment due to the employee’s refusal to sign an authorization. This prohibition had an exception for necessity, meaning that the employer could take action as needed in the absence of medical information due to the employee’s refusal to sign an authorization.

Next, the appellate court noted that the school could not fulfill the health order’s requirements without the cooperation of all its workers, including the plaintiff. The school’s administration could not verify the plaintiff’s vaccination status on its own and could not report test results that it did not have.

In this case, the appellate court found that the defendants took the action necessary to comply with the health order in the absence of medical information. According to the appellate court, given the circumstances, the defendants had no choice except to do the following:

  • to impose disciplinary consequences to prevent the plaintiff from working in person until she started reporting her weekly test results
  • to order her to stay home until she gave her test results
  • to terminate her when it became clear that she was never going to undergo testing

The plaintiff argued that the defendants could have provided reasonable accommodations or opted for other solutions, including setting up plexiglass or imposing physical distancing requirements, instead of putting her on unpaid leave and ultimately firing her.

The appellate court disagreed. It could not see how the alternative arrangements suggested by the plaintiff would enable the defendants to fully comply with the health order. Even if the defendants permitted her to return to work in the classroom from behind a plexiglass shield, they would not be able to verify her vaccination status or to report the test results of all unvaccinated workers to local health departments, the appellate court explained.

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