From March 2020 through February 2023, California was in a State of Emergency due to COVID-19. Midway through this period, on August 11, 2021, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID 19 vaccination status of all school workers (State Dept. of Public Health, State Public Health Officer Order of Aug. 11, 2021.)
When the Public Health Order went into effect, Gloria Elizabeth Rossi was working at the School, as she had for decades, providing in-person classroom assistance for children with special needs and children whose primary language is Spanish.
Rossi was placed on unpaid administrative leave and then terminated from her employment with defendant Sequoia Union Elementary School District after refusing to either provide verification of her COVID-19 vaccination status or undergo weekly testing as required by a then-operative order of the State Public Health Officer.
Rossi brought suit under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, § 56 et seq.) against defendants the School District; Sequoia Union Elementary School, the School where she worked, and Ken Horn, the School principal and superintendent.
Her complaint asserted two causes of action under the CMIA, alleging (1) discrimination due to her refusal to authorize release of her medical information and (2) unauthorized use of her medical information.
The trial court sustained defendants’ demurrer without leave to amend, finding each claim failed as a matter of law due to certain statutory exceptions.
This appeal is related to two other contemporaneous appeals (Dennis v. Tulare City School District (Aug. 25, 2023, F085428) [nonpub. opn.]; Moran v. Tulare County Office of Education (Aug. 25, 2023, F085385) [nonpub. opn.]) from nearly identical orders by judges of the Tulare County Superior Court dismissing identical CMIA causes of action by similarly situated school-worker plaintiffs.
The plaintiff-appellants in all three cases were represented by the same counsel; the cases were argued on the same day before the same panel of this Court. In this case the Court of Appeal affirmed the trial court’s orders in the published case of Rossi v. Sequoia Union Elementary School District F085416 (August 2023) on substantially identical grounds in all three cases.
Plaintiff’s principal contention on appeal is that the Public Health Order did not specify “what to do with individual employees not complying” and did not mandate their termination; she argues defendants’ disciplinary actions were therefore undertaken at their discretion, not necessitated by the Order.
The Court of Appeal noted that “The Public Health Order required “full compliance” by facilities and mandated that all K-12 schools “must verify vaccine status of all workers” and that those schools with workers who must test (i.e., with workers not reporting complete vaccination) “must report results to local public health departments.”
Notably, “the School could not fulfill either of these requirements without the cooperation of plaintiff (and all School workers).” And the “administration could not verify her vaccination status on its own, and it could not transmit test results it did not have. Although the Order did not literally state that unvaccinated and non-testing workers could not be present on school campuses, the Order’s prefatory text makes clear that its goal was to “minimize the risk that [workers] will transmit [COVID-19] while on K-12 school campuses,”
Plaintiff argues a fact finder might reasonably conclude that other reasonable accommodations could have been reached besides putting her on unpaid leave and ultimately firing her – positing “plexiglass [or] physical distancing” as other possible solutions.
“However, we do not see how other potential arrangements like these would allow defendants to bring the School into ‘full compliance’ with the Public Health Order. Even if defendants allowed plaintiff to return to work in the classroom from behind a plexiglass shield, that would not allow them to either verify her vaccination status or report all unvaccinated-worker test results to local health departments. There is no room for factual debate about how else defendants could have complied with the Order’s requirements without directing plaintiff to stay home until she provided test results – and terminating her when it was clear she was never going to test.”
The Court of Appeal likewise concluded that the demurrer was properly sustained for the second cause of action, under Civ. Code § 56.20(c) (Unauthorized Use Claim), but not for the reasons stated by the trial court.
The complaint pleads a section 56.20(c) cause of action arising purely from defendants’ unauthorized use of plaintiff’s purported medical information (that is, her presumed unvaccinated status) to terminate her employment. Section 56.20(c)(1)’s exception states: “The information may be disclosed if the disclosure is compelled by judicial or administrative process or by any other specific provision of law.”
There is no allegation that defendants disclosed her vaccination status to any third party.
National Nurses United, with nearly 225,000 members nationwide, is the largest union and professional association of registered nurses in U.S. history. In 2009, California Nurses Association/National