Employment Protections for Nurses and Doctors on the COVID-19 Frontlines

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:

New Protections for Airline Whistleblowers Land in Minnesota

Whistleblowers who work for airlines have new protections, thanks to a ruling by the federal appeals court with jurisdiction over Minnesota. The ruling on August 31, 2017, allows employees to sue as whistleblowers under the Minnesota Whistleblower Act when they get fired for reporting illegal airline conduct after it happened.

The ruling makes it clear that whistleblowers have the right to be free from retaliation after reporting concerns about “post hoc,” or, after-the-fact law violations—and, more importantly, the right to sue the airline-employer under state whistleblower laws when such retaliation occurs.

In Watson v. Air Methods Corp, the plaintiff, a flight paramedic, had sued Air Methods Corp. using Missouri’s common law whistleblower protections after making post hoc reports about safety violations and getting fired. The Eighth Circuit had to decide whether the federal Airline Deregulation Act trumped all state efforts to protect whistleblowers in the airline industry because that federal act expressly bars states from enacting or enforcing laws that have the “force and effect of law related to a price, route, or service of an air carrier that may provide air transportation . . . .”

The Eighth Circuit decided that the federal Airline Deregulation Act does not expressly preempt state whistleblower lawsuits alleging retaliation for reports of after-the-fact law violations.  Preemption is a court doctrine that creates divisions between what rights parties can pursue under state law versus federal law.  Sometimes courts rule that federal law trumps state law, making state laws completely unenforceable in some respects due to the “Supremacy” of federal law under the U.S. Constitution.

The Watson ruling overturned a 15-year-old decision that had limited state law protections for airline industry whistleblowers. Prior to Watson, airline employers used a 2002 Eighth Circuit case called Botz v. Omni Air International to argue that whistleblowers in Minnesota, Missouri, and other Eighth Circuit states simply could not bring their retaliation claims under their more-favorable state whistleblower laws because they were preempted by federal law.

Employees who get fired because of after-the-fact reports can now pursue state whistleblower actions. Those claims aren’t preempted because they don’t interrupt air carrier service—they’re happening after-the-fact, after all.

Employees who get fired for refusing to act because they believe the act would be illegal, however, will arguably still not have state whistleblower protections.

If you are an airline employee outside of Minnesota who has been retaliated against for reporting after-the-fact legal or safety violations, you should contact a lawyer to see how your state laws apply to you.  The recent Eighth Circuit decision deepened a so-called “circuit split” between the various federal appeals courts on this particular issue. The Supreme Court could take up the issue in the future and decide a different outcome or make the Eighth Circuit’s decision the law for the entire country. Until then, rights will vary based upon jurisdiction.

All employees—regardless of state law—also have the protections of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). Prior to the enactment of the law in 2000, aviation employees were not protected from retaliation if they reported possible safety violations or concerns. Under AIR21′s Whistleblower Protection Program, 49 U.S.C. Section 42121, employees can disclose aviation hazards without fear of reprisal. Federal law requires employees to act much faster—deadlines are quick so you must act fast if you’re a victim of retaliation. By comparison, Minnesota's state whistleblower law has a six-year statute of limitations (but anyone who's experienced retaliation should always act fast to protect legal rights).