Employment Law: Termination in Response to Alleged HIPAA Violation May Constitute Age Discrimination

​Allegations that a hospital discriminated against an employee on the basis of her age in violation of the federal Age Discrimination in Employment Act (29 USC §§ 621-34) and comparable state law were sufficient to survive the defendant's motion for summary judgment in a recent ruling of the Eastern District of California court. The case involved a 69-year-old nurse who was fired for a single alleged violation of the Health Information Portability and Accountability Act (HIPAA) in the course of her duties as an employee health nurse.

According to court records, the nurse administered annual tuberculosis (TB) skin tests to all employees. The circumstances that led to her termination concerned TB testing for a single employee who was afraid that he had TB based on what the nurse assessed as allergic reaction to the skin test. Before the required 48 to 72 hours had elapsed for the nurse to read the results of the skin test, the employee went to his personal physician, who ordered a blood test for TB. A copy of the blood test results was sent to the employee health nurse's office; it indicated that the employee had tested positive for TB. However, the nurse remained concerned that the results might be confounded by an allergic reaction to the skin test. She reported the results to the public health...