Minnesota’s nurses and doctors are being asked to prepare for catastrophe—COVID-19 patient influxes that exceed hospital capacity in the event statewide stay-at-home measures do not “flatten” or even “bend” the curve.
Healthcare workers are rightly being heralded as heroes across the country. They are going to work lacking sufficient protective gear—masks, gowns, respirators, face shields—to treat patients and save lives.
These healthcare workers are taking selfless risks in carrying out their missions. Some are nevertheless starting to justifiably sound the alarm about their own safety as they continue to do their heroic work.
Yesterday, New York Times columnist Nicholas Kristof wrote about a Seattle-area doctor who spoke up about his hospital’s lack of protective gear and then got fired. The doctor had worked at that institution for 17 years.
THE PROBLEM: A SYSTEMIC LACK OF PREPAREDNESS
Weeks before the president of the United States acknowledged that social distancing should be practiced to limit the community spread of COVID-19, nurses were already sounding the alarm about examples of huge system failures in American healthcare and preparedness.
Today we know that our nation’s health care heroes—nurses, doctors, and the countless hospital staffers who support their work—are battling COVID-19 in conditions that are not only less than ideal, they are downright dangerous. We have all seen the accounts:
A surgeon in California told the New York Times that she felt she was at "war with no ammo,” and refused to give her name, “worried about retribution from administrators for speaking out.”
A CBS news report from more than two weeks ago detailed the desperation of nurses and doctors who were—and still are—running low on Personal Protective Equipment (“PPE”), highlighting one ER doc who got his workplace’s last pair of goggle at 9 a.m. one day.
Registered nurses at 15 HCA Healthcare hospitals in seven states are holding actions Wednesday and Thursday, April 1 and April 2, to protest a lack of preparedness by the nation’s largest hospital chain that they say places nurses, other staff, and patients at risk.
SEEN AS A PROBLEM: HEALTHCARE HEROES WHO SPEAK UP ABOUT SYSTEM FAILURES
The California surgeon who told the New York Times she “worried about retribution” for telling the paper that she lacked access to basic surgical masks during the COVID-19 crisis was right to worry. Retaliation for speaking out has been known to happen—it’s why the federal government and state governments have enacted protections for whistleblowers who speak truth to power on critical issues like basic protections for healthcare workers during crises like this pandemic.
LEGAL PROTECTIONS FOR HEALTHCARE HEROES WHO SOUND THE ALARM ON PREPAREDNESS
Health care workers battling on the frontlines of COVID-19 are protected by the law in some critical instances for speaking up about their employers’ lack of preparedness when it comes to their safety.
Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act) prohibits employers from retaliating against employees for exercising a variety of rights guaranteed under the OSH Act, such as raising a health and safety concern with their employers, participating in an OSHA inspection, or reporting a work-related injury or illness.
Parallel protections exist under Minnesota state laws—”MN OSHA”—prohibiting retaliation for raising health and safety concerns with their employer.
The Minnesota Whistleblower Act protects all employees from reprisal because they reported actual, suspected, or planned illegal activities to their employers or to a government agency.
Under these laws, various employer reprisals constitute illegal actions—things up to and including termination, but also: blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failure to hire or rehire, intimidation, making threats, reassignment affecting prospects for promotion, or reducing pay or hours.
IMPORTANTLY: under the state and federal occupational safety and health acts (OSHA) employees only have 30 days after learning of the retribution to file a formal complaint with the appropriate department of labor agency. This is a tight window to take advantage of a very meaningful means of recourse. Pursuing recourse under the Minnesota Whistleblower Act, however, has a six-year statute of limitations.
Affected healthcare workers should nevertheless act as quickly as possible to take advantage of all possible avenues, including the OSHA remedies.
FREE PHONE CONSULTATIONS FOR HEALTH CARE WORKERS, EXTENDED HOURS
Our attorneys are offering extended and free phone consultations to healthcare workers who need employment law consultations during COVID-19, including consults outside normal business hours and on weekends.
Nurses, doctors, and other healthcare workers affected by retaliation or any other suspect employer activity relating to the COVID-19 crisis can schedule a consult for any time that works for them by clicking the button below: