August 8, 2021 by Tom Roberts, Esq.
Can a Virginia employer lawfully terminate me for refusing to disclose whether I have been "vaccinated" for COVID-19?
Answer: No, they may be liable under a Bowman claim for wrongful termination as a narrow exception to employment-at-will.
LIMITATION OF THIS BLOG ARTICLE: This article is not addressing whether an employer terminates a person for not receiving a COVID “vaccine” but instead is terminated for refusing to disclose whether or not they have been “vaccinated”
Further, state Bowman claims do not apply to federal employees. (See recent order from federal court requiring employees to report private health data to the court)
Public Policy: Va Code § 32.1-127.1:03. entitled “Health records privacy” states in pertinent part, “There is hereby recognized an individual’s right of privacy in the content of his health records.”
Counter Arguments – this is an evolving area of law.
It may be argued that the public policy is narrowly constrained to prevent Health Care entities (providers, health plans or health care clearing houses) from disclosing the records and does not give the individual an independent right of privacy to their medical information so that an employer may not force them to disclose their vaccination status. Additionally, the statute’s own exceptions permitting Health care entities to disclose undercuts the argument and begins to erode the policy.
For e.g., See Va Code § 32.1-127.1:03(D)(6)
6. As required or authorized by law relating to public health activities, health oversight activities, serious threats to health or safety, or abuse, neglect or domestic violence, relating to contagious disease, public safety, and suspected child or adult abuse reporting requirements, including, but not limited to, those contained in §§ 16.1-248.3, 32.1-36, 32.1-36.1, 32.1-40, 32.1-41, 32.1-127.1:04, 32.1-276.5, 32.1-283, 32.1-283.1, 32.1-320, 37.2-710, 37.2-839, 53.1-40.10, 53.1-133.03, 54.1-2400.6, 54.1-2400.7, 54.1-2400.9, 54.1-2403.3, 54.1-2506, 54.1-2966, 54.1-2967, 54.1-2968, 54.1-3408.2, 63.2-1509, and 63.2-1606;
Employment at-will in Virginia
Absent a contract otherwise, Virginia adheres to the employment at-will doctrine, which allows that “[a]n employee remains at liberty to leave his employment for any reason or for no reason,” and “[b]y the same token, the employer is free to terminate the employment relationship without the need to articulate a reason.” Johnston v. William E. Wood & Assocs., 292 Va. 222, 225-26, 787 S.E.2d 103, 105 (2016)
What is a Bowman claim? What are the narrow exceptions to employment at-will in Virginia?
In the case of Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (Va. 1985), the Supreme Court of Virginia recognized for the first time a “narrow exception” to the at-will employment doctrine. This narrow exception allows at-will employees to state a claim for wrongful discharge if they can identify a public policy that was violated by the termination of their employment. In Francis v. Nat’l Accrediting Comm’n of Career Arts & Scis., Inc., 293 Va. 167, 172-73, 796 S.E.2d 188, 190-91 (2017), the court said that this exception to at-will employees provides that an employee has a common-law cause of action for wrongful termination in only three scenarios:
(1) when the employer violates a public policy enabling the exercise of an employee’s statutorily created right; See Bowman.
(2) when the employer violates public policy explicitly expressed in a statute and the employee is a clear member of the class of persons entitled to protection by the public policy;See Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 480 S.E.2d 502 (1997); Lockhart, 247 Va. 98, 439 S.E.2d 328, 10 Va. Law Rep. 751 and
(3) when the discharge is based on the employee’s refusal to engage in a criminal act. See Mitchem v. Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000).
Virginia Human Rights Act removed the common law action for all public policies originating in that Act.
In Conner v. Nat’l Pest Control Ass’n, Inc., 257 Va. 286, 513 S.E.2d 398 (Va. 1999), the court held that the Virginia Human Rights Act (VHRA) made statutory causes of action the exclusive avenues for pursuing a remedy for an alleged violation of any public policy reflected in the VHRA. Thus, the Conner court concluded that the Virginia General Assembly, in enacting the 1995 amendments to the VHRA, eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere.
But if the public policy is based upon another statute, the VHRA does not block the common law action of wrongful termination
In Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (Va. 2000). In Mitchem, the plaintiff contended, on appeal, that she was discharged from her employment because, among other things, she rejected her employer’s demands that she perform sexual acts in violation of Virginia Code Annotated § 18.2-344, which prohibits fornication, and Virginia Code Annotated § 18.2-345, which prohibits lewd and lascivious cohabitation. See 523 S.E.2d at 249. The court distinguished Mitchem from Doss and Conner, in that Mitchem identified public policies not reflected in the VHRA as the basis for the plaintiff’s common law claims, while, at the same time, the conduct alleged also violated a public policy reflected in the VHRA. See Mitchem, 523 S.E.2d at 250. In accordance with its earlier decisions in Doss and Conner, the Virginia Supreme Court in Mitchem held that § 2.2-2639(D) abrogated only common law causes of action for wrongful termination that are based on the public policies reflected in the VHRA. See 523 S.E.2d at 250. The court held, however, that § 2.2-2639(D) did not prohibit a common law cause of action for wrongful termination based on the public policies against fornication and lewd and lascivious behavior, because those policies are not reflected in the VHRA. See Mitchem, 523 S.E.2d at 250
Virginia Human Rights Act (VHRA)
The VHRA, as amended in 2021, states in pertinent part that “It is the policy of the Commonwealth to:
- Safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, military status, or disability in places of public accommodation, including educational institutions and in real estate transactions;
- Safeguard all individuals within the Commonwealth from unlawful discrimination in employment because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or military status;
- Preserve the public safety, health, and general welfare;
- Further the interests, rights, and privileges of individuals within the Commonwealth; and
- Protect citizens of the Commonwealth against unfounded charges of unlawful discrimination.
Claims under the VHRA must be filed through the statutory procedures outlined in Va. Code § 2.2-3907 and if not resolved therein by civil suit as outlined in Va. Code § 2.2-3908.
No vested property interest in continued employment protected by federal constitution
Additionally, the Virginia Supreme Court has specifically held that a government employee who is an at-will employee has no vested property interest in her continued employment which is protected by the federal constitution. Sizemore v. Sw. Va. Reg’l Jail Auth., Civil Action No. 1:08cv00035, 2009 U.S. Dist. LEXIS 12051, at *24 (W.D. Va. Feb. 17, 2009) citing County of Giles v. Wines, 262 Va. 68, 546 S.E.2d 721, 725 (Va. 2001).
APPLICATION OF LAW TO FACT
Virginia public policy to medical privacy - Va Code § 32.1-127.1:03
So, with this legal framework, we now turn to ask whether an employer infringes the rights of employees to maintain and exercise their medical privacy Va. Code § 32.1-127.1:03 free of duress and intimidation imposed on the individual by the employer. Va Code § 32.1-127.1:03. entitled “Health records privacy” states in pertinent part, “There is hereby recognized an individual’s right of privacy in the content of his health records.” Just like the two employees in Bowman, in order for the goal of the statute to be realized and public policy to be fulfilled, the employee must be able to exercise this right without fear of reprisal from their employee. Because the right conferred by statute is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered discretion to maintain medical privacy and autonomy.
Wrongful Termination Claim is NOT barred by the VHRA
The public policy does not arise from the VHRA. The discharge would be tortious, not because the employees had a vested right to continued employment, but because the employer had misused its freedom to terminate the services of at-will employees in order to subvert a right guaranteed to individuals to maintain their medical privacy by statute.” Francis v. Nat’l Accrediting Comm’n of Career Arts & Scis., Inc., 293 Va. 167, 173-74, 796 S.E.2d 188, 191 (2017) citing Miller v. SEVAMP, Inc., 234 Va. 462, 467, 362 S.E.2d 915, 918, 4 Va. Law Rep. 1309 (1987).
Commentary - Practice Footnote
Litigation is expensive. See the potential counter arguments stated herein. Due to the substantial polarization that COVID topics have, it would be difficult to seat a jury without bias and to get a unanimous verdict in favor of the employee.
The materials are prepared for information purposes only. The materials are not legal or medical advice. You should not act upon the information without seeking the advice of an attorney or a physician. Nothing herein creates an attorney-client relationship or a doctor-patient relationship.
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