A Louisiana firefighter who was terminated for failing to provide medical documentation relative to a COVID-related hospitalization, has filed suit alleging disability discrimination, whistleblower violation, retaliation, violation of his due process rights, and negligent supervision. Kevin Jerome filed suit against the Rapides Fire District # 4, Chief Britt Bolen, and the Rapides Parish Police Jury in US District Court for the Western District of Louisiana.
Jerome contracted COVID19 in August, 2020 and was hospitalized August 29, 2020. The factual allegations are difficult to follow so rather than try to interpret what is said, they are quoted here at length:
- Kevin had been feeling sick prior to August 28, 2020, when Kevin was sent home due to his medical condition. Fire District has an unwritten policy that discourages “call in” sick or requests to go home.
- The following day, Kevin was hospitalized at Our Lady of Lourdes Hospital with both COVID-19 and pneumonia and he spent the following week hospitalized.
- No visitors were allowed to visit Kevin at the hospital, including his wife, Kristina.
- On or about August 30, 2020, Bolen appeared on the doorstep of Kristina and accused Kevin of faking the illness, among other allegations.
- Bolen was aggrieved in part because Kevin himself, who was hospitalized with pneumonia and coronavirus, had not called in sick, even though Kristina had telephoned the fire house and informed the fire house of Kevin’s condition and whereabouts.
- On the same date, Bolen appeared at Our Lady of Lourdes for the purpose of visiting Kevin. Bolen was not permitted to see Kevin due to the hospital’s quarantine rules.
- Bolen, who has shown animus to Jerome in the past, did not believe that Kevin had the coronavirus and to this date, does not believe that Kevin had coronavirus.
- Police Jury and Fire District require physician’s documentation to return to work from injury and/or illness.
- Kevin provided a letter dated September 10, 2020, from Dr. Michael Vanderlick regarding Kevin’s hospitalization at Our Lady of Lourdes Hospital.
- Despite the letters, Fire District and Police Jury required Kevin to complete a Physician’s Certificate which required the disclosure his medical records.
- Dr. Curran took the form and wrote that Kevin had “coronavirus/pneumonia” and a “history of coronavirus pneumonia.”
- Dr. Curran also wrote in the Physician’s Certificate, “now recovered” and checked the box for “Full Duty—Date of Return 10-3-20.”
- The form was blacked out at Dr. Curran’s insistence and direction by Kevin.
- The modified form was returned to Fire District on or about September 24, 2020.
- Kevin attempted to return to work on or about October 3, 2020.
- Kevin was not permitted to return to work because he had not completed the entirety of the Form.
- Kevin informed Bolen that to complete the form would be a violation of his rights, specifically the patient/health care provider privilege and the Health Insurance Portability and Accountability Act (HIPAA) and that Bolen had sufficient documentation in order to reinstate me.
- Instead, Kevin was placed on administrative leave with the requirement of completing the form, even though he protested that it was improper/illegal for the Fire District to acquire my medical records (through a form which was not HIPAA compliant).
- Kevin was eventually suspended without pay, with said suspension running until January 30, 2021.
- In a letter dated January 27, 2021, Fire District added the additional condition as follows: “Kevin Jerome’s suspension ends on January 30, 2021, and he may return to work CONDITIONED upon him submitting the ORIGINAL copy of the Physicians Certificate certifying his ability to return to work and completed by his treating physician—with no deleted or marked out sections of the form.”
- Bolen placed Jerome back on the schedule, even though he knew that the condition of reinstatement had not been completed. Specifically, Bolen placed Jerome back on the schedule for January 31, and February 1, 6, and 7.
- Bolen never contacted Jerome to inform him that he was on the schedule. Further, upon information and belief, Bolen also required that no other firefighter contact Kevin to inform him that he had been placed on the schedule.
- By letter dated February 11, 2021, Mr. Jerome was again placed on administrative leave pending further investigation by the Fire District and Police Jury. The letter states, “You will be informed of the results of the investigation; you will be warranted to report upon callback to discuss the actions of disciplinary measures if any are found warranted.”
- With the letter of February 11, 2021, under the civil service rules, Kevin could not be absent without leave; he was already classified as on Administrative Leave without Absence.
- Kevin’s physician, Dr. Curran, refused to complete the form until February 11, 2021.
- However, as a condition of completing the form, Dr. Curran informed Kevin that he was prohibited from executing the form.
- Dr. Curran stated that she would fire Mr. Jerome as a patient if he executed the form. Left between a choice of satisfying his physician and the law regarding HIPAA or satisfying his employer’s request for an impermissible act, Mr. Jerome never executed the Physician’s Certificate.
- The unsigned Physician’s Certificate was delivered to Rapides Fire District # 4 on or about February 24, 2021.
- Dr. Curran will not permit the use of an improper HIPAA form to be the basis to release records and the completion of the form in total will cause her to terminate me as a patient.
- Further, because the Fire District is requiring Kevin’s medical records, Fire District and Police Jury perceive Kevin as disabled and unable to complete the job duties of a fireman.
- Via letter dated March 22, 2021, Bolen recommended that Kevin be terminated from his employment as firefighter as a result of the suspension.
- Via letter dated May 4, 2021, Police Jury imposed discipline upon Kevin for his failure to return to work.
The whistleblower and retaliation claims are based on Jerome’s having raised HIPAA concerns.
Here is a copy of the complaint: