If you believe your employer retaliated against you because you reported or protested unsafe work conditions, you can contact the experienced employment lawyers at Bernabei & Kabat, PLLC at 202-745-1942
and at www.bernabeipllc.com.
What legal protections exist for health care workers who speak out about unsafe work conditions during the COVID-19 pandemic?
Doctors, nurses, lab technicians, respiratory therapists, emergency services workers, and nursing home and long-term care facility staff are on the front lines of the COVID-19 pandemic, and face the impossible daily balancing act of providing care to individuals exhibiting common symptoms of COVID-19, while attempting to prevent themselves and their loved ones from becoming infected.
As a result of the nationwide shortage of personal protective equipment (PPE), health care workers are expected to perform their jobs under almost constant exposure to the coronavirus, and are often forced to reuse for multiple days the N95 masks, face shields, and other PPE that are necessary for them to perform their jobs safely.
Hundreds of health care workers and emergency personnel have already fallen ill from the coronavirus, some critically, and many are expected to die from COVID-19. According to a recent modeling projection by the Center for Health Workforce Studies at the University of Washington, of the 13.6 million U.S. health care workers assumed to be on the frontlines of COVID-19, approximately 2.8 million will test positive for the coronavirus, and, depending on the effects of social distancing and availability of PPE, between 21,436 and 277,957 health care workers will die from COVID-19,
In light of this grave threat to the health and safety of health care workers and emergency personnel across the United States, many such workers are speaking out to the press and on social media about the dangerous workplace conditions they are forced to endure.
But what legal protections are available to health care workers who face retaliation after speaking out about the unnecessarily unsafe workplace conditions they face as a result of the nationwide failure to provide PPE to frontline health care workers during the COVID-19 pandemic, and other unsafe workplace conditions?
There is a confusing patchwork of federal and state law protections for health care workers who speak out publicly about unsafe workplace conditions, with many states providing protections that can go beyond what federal law provides. Therefore, it is important to consider all possible sources of remedies if a health care employer retaliates against a health care worker who speaks out about the dangers they face in the workplace.
There is no federal law protection specifically for health care workers in the private sector who blow the whistle on unsafe work conditions. The only potential relief under federal law is through the Occupational Safety and Health Administration (U.S. Department of Labor), since the OSHA Act has an anti-retaliation provision that, in theory, protects employees who reported or protested workplace safety issues. 29 U.S.C. § 660(c).
However, only the Department of Labor can investigate these complaints, and OSHA only finds merit in about 1 percent of all complaints. There is no right of private action, so if OSHA dismisses a complaint, or settles it for minimal relief, then the employee cannot do anything further with the OSHA complaint.
Health care workers who work for the federal government as civilian employees (not as military officers) can be protected under the federal Whistleblower Protection Act, 5 U.S.C. § 2302. This federal law is enforced through the Merit System Protection Board (MSPB), an agency that can be slow in responding, and seldom finds in favor of the employees. A federal health care worker may also be able to file a complaint with the Office of Special Counsel (OSC), but that agency is unable to investigate fully each complaint.
At the state level, there is a varied patchwork of laws and court decisions that can protect physicians and other health care workers. Those who are state government employees, such as at a public university’s medical school or a state hospital, may be protected by state whistleblower statutes that protect state civil service employees. For private sector health care workers, there are several alternatives available in every state, except for Alabama and Georgia.
First, in a majority of the states – 42 and the District of Columbia – the state courts have created a common law claim known as “wrongful termination in violation of public policy.” This claim protects employees who blow the whistle on workplace conduct that in some way violates laws, regulations, or rules governing the workplace. Inevitably, the scope of this protection varies significantly from one state to another. For example, some states (e.g., Virginia) only recognize violations of state law, not federal law, as a basis for a public policy claim. Some states only protect employees who report to government agencies, not employees who only complain to their employer. Some states only protect the termination of an employee, and not a demotion or a reassignment. The remedies for this common law claim are usually lost wages, other compensatory damages (such as emotional distress), and sometimes punitive damages; attorneys’ fees are generally not available as a remedy.
Of the remaining eight states that do not recognize a common-law claim, six have statutory whistleblower protections for private sector employees – Florida, Louisiana, Maine, Montana, New York, and Rhode Island – which take the place of a common law claim.
At least 24 states have both statutory and common law protections, and an attorney will need to determine which is most appropriate. In some cases, the ability to bring a statutory claim may preclude bringing a common law claim, even if they have different remedies.
At least 30 states also have a state-level occupational safety and health agency, similar to the federal OSHA, and that agency has the authority to investigate retaliation claims. However, the only remedy may be through filing an administrative complaint with the state agency (usually within only 30 days of the adverse action), and hoping that the state agency will take action.
This leaves only Alabama and Georgia, in which there is no state statutory or common law protection for private sector health care whistleblowers, and private sector employees in those two states would have to rely on the federal OSHA retaliation statute.
The following is a summary of the legal protections available to health care workers in each state and in the District of Columbia:
No state-level protections for private sector employees.
No state level protections for private sector employees.
This summary of legal protections for health care workers is for informational purposes only. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.
If you believe your employer retaliated against you because you reported or protested unsafe work conditions, you can contact the experienced employment lawyers at Bernabei & Kabat, PLLC at 202-745-1942
and at www.bernabeipllc.com.
