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Legal Protections for Health Care Workers During the COVID-19 Pandemic

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.

Legal Protections for Health Care Workers Under Federal Law

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.

Legal Protections for Health Care Workers Under State Law

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:

Alabama
No state-level protections for private sector employees.

  1. Alabama State Employees Protection Act, Ala. Code § 36-26A-1 to § 36-26A-7 (state and local government employees).

Alaska

  1. Common law wrongful discharge claim.
  2. Alaska Occupational Safety and Health Standards, Alaska Stat. § 18.60.089 (30 days to file complaint with state agency).

Arizona

  1. Common law wrongful discharge claim.
  2. Arizona Employment Protection Act, Ariz. Rev. Stat. § 23-1501 (reporting violations of state law).
  3. Arizona OSHA retaliation statute, Ariz. Rev. Stat. § 23-425 (30 days to file complaint with state agency).

Arkansas

  1. Common law wrongful discharge claim.
  2. Public employees, Arkansas Whistle-Blower Act, Ark. Code Ann. § 21-1-601 to § 21-1-610.

California

  1. Common law wrongful discharge claim.
  2. California Labor Code, retaliation for complaining about safety conditions. Calif. Labor Code § 98.7 (six months to file complaint with Division of Labor Standards Enforcement).
  3. California Labor Code, retaliation for reporting violations to the government. Calif. Labor Code § 1102.5.
  4. California Health and Safety Code, retaliation for involvement with government agency investigations and proceedings at an accredited health care facility. Calif. Health & Safety Code § 1278.5 (health facilities); § 1432 (long term health facilities).

Colorado

  1. Common law wrongful discharge claim.
  2. State Employee Protection Act, Colo. Rev. Stat. § 24-50.5-101 to § 24-50.5-107 (10 days for government employee to file complaint).

Connecticut

  1. Common law wrongful discharge claim.
  2. Public employee whistleblower statute, Conn. Gen. Stat. 4-61dd.

Delaware

  1. Common law wrongful discharge claim.
  2. Delaware Whistleblower Protection Act, Del. Code tit. 19, § 1701 to § 1708.
  3. Long term and psychiatric care facilities, retaliation provision, Del. Code tit. 16, § 111, § 1117, § 1135, § 1154.

District of Columbia

  1. Common law wrongful termination claim.
  2. D.C. occupational safety and health statute, D.C. Code § 32-1117 (60 days to file complaint with agency).

Florida

  1. Private sector whistleblower statute, Fla. Stat. § 448.101 to 448.105.
  2. Florida public employees, Whistle-blower’s Act, Fla. Stat. § 112.3187.

Georgia
No state level protections for private sector employees.

  1. State government employee protections, Georgia Code § 45-1-4.

Hawaii

  1. Common law wrongful termination claim.
  2. Hawaii Whistleblower Protection Act, Haw. Rev. Stat. § 378-61 to § 378-69.
  3. Hawaii occupational safety and health retaliation, Haw. Rev. Stat. § 396-8 (60 days to file complaint with Department of Labor and Industrial Relations).

Idaho

  1. Common law wrongful termination claim.
  2. Idaho Protection of Public Employees Act, Idaho Code § 6-2101 to § 6-2109.

Illinois

  1. Common law wrongful termination claim.
  2. Health care whistleblower statute, 210 Ill. Comp. Stat. 86/35 to 86/40.
  3. Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/10 to 174/40.
  4. Illinois occupational health and safety retaliation, 820 Ill. Comp. Stat. 219.110 (30 days to file complaint with Indiana Department of Labor).

Indiana

  1. Common law wrongful termination claim.
  2. Indiana occupational health and safety retaliation, Ind. Code 22-8-1.1-38.1 (30 days to file complaint with Indiana Department of Labor).

Iowa

  1. Common law wrongful termination claim.
  2. Public employee whistleblower statute, Iowa Code § 70A.28 (30 days to file complaint).
  3. Iowa occupational safety and health retaliation, Iowa Code § 88.9(3) (30 days to file complaint with Iowa Workforce Development).

Kansas

  1. Common law wrongful termination claim.
  2. Public employees, Kansas Whistleblower Act, Kans. Stat. § 75-2973 (90 days to file complaint).
  3. Kansas occupational safety and health retaliation, Kans. Stat. § 44-636(f).

Kentucky

  1. Common law wrongful termination claim.
  2. Kentucky public employees whistleblower act, Ky. Rev. Stat. § 61.102 – § 61.103 (90 days to file complaint).
  3. Kentucky occupational safety and health retaliation, Ky. Rev. Stat. § 338.121(3).

Louisiana

  1. Health care whistleblower statute, La. Rev. Stat. § 40:2009.17
  2. Louisiana whistleblower statute, La. Rev. Stat. § 23:967.
  3. Louisiana public employees whistleblower statute, La. Rev. Stat. § 42:1169.

Maine

  1. Maine Whistleblowers’ Protection Act, Me. Rev. Stat. tit. 26, § 831 to § 840 (only through filing a complaint within six months with the Maine Human Rights Commission, and not through a private lawsuit in court).
  2. Maine occupational safety and health retaliation, Me. Rev. Stat. tit. 26, § 570 (30 days to file complaint with Maine Bureau of Labor Statistics).

Maryland

  1. Common law wrongful termination claim.
  2. Maryland Health Care Worker Whistleblower Protection Act, Md. Code, Health Occupations, § 1-501 to § 1-506.
  3. Maryland public employees whistleblower statute, Md. Code, State Personnel & Pensions, § 5-301 to § 5-314 (6 months to file complaint).
  4. Maryland occupational safety and health retaliation, Md. Code, Labor & Employment, § 5-604 (30 days to file complaint).

Massachusetts

  1. Common law wrongful termination claim.
  2. Massachusetts public employee whistleblower act, Mass. Gen. Laws ch. 149, § 185.
  3. Massachusetts medical professional retaliation, but only for reports relating to abuse, mistreatment, or neglect of a patient, Mass. Gen. Laws. ch. 111, § 72G.

Michigan

  1. Common law wrongful termination claim.
  2. Health care whistleblower statute, Mich. Comp. Laws § 333.20180.
  3. Whistleblowers’ Protection Act, Mich. Comp. Laws § 15.361 to § 15.369 (only protects reports to government agencies, not internal reports).
  4. Michigan OSHA statute, Mich. Comp. Laws § 408.1065 (30 days to file a complaint).

Minnesota

  1. Common law wrongful termination claim.
  2. Minnesota Whistleblower Protection Act, Minn. Stat. § 181.932 and § 181.933.
  3. Minnesota occupational safety and health retaliation, Minn. Stat. § 182.654(9) and § 182.669 (30 days to file a complaint).

Mississippi

  1. Common law wrongful termination claim.
  2. Public employees whistleblower protection act, Miss. Code § 25-9-171 to § 25-9-177.

Missouri

  1. Common law wrongful termination claim.
  2. Health care whistleblowers, Mo. Rev. Stat. § 197.285.
  3. Nursing home employees, Mo. Rev. Stat. § 198.301.
  4. Protection for reporting infection control concerns, Mo. Rev. Stat. § 197.152.
  5. Public employees whistleblower act, Mo. Rev. Stat. § 105.055.

Montana

  1. Montana Wrongful Discharge from Employment Act, Montana Code § 39-2-901 to § 39-2-915.

Nebraska

  1. Common law wrongful termination claim.
  2. State Government Effectiveness Act (public employees), Neb. Rev. Stat. § 81-2701 to § 81-2705.
  3. Occupational safety and health retaliation, Neb. Rev. Stat. § 48-443, § 48-444.

Nevada

  1. Common law wrongful termination claim.
  2. Occupational safety and health retaliation, Nev. Stat. § 618.445 (30 days to file a complaint)
  3. Public employees whistleblower act, Nev. Stat. § 281.631, § 281.641, § 281.645.

New Hampshire

  1. Common law wrongful termination claim.
  2. Whistleblowers’ Protection Act, N.H. Rev. Stat. § 275-E:1 to § 275-E:9 (file complaint with New Hampshire Department of Labor).
  3. Occupational safety and health retaliation, N.H. Rev. Stat. § 277:35-a (file complaint with New Hampshire Department of Labor).

New Jersey

  1. Common law wrongful termination claim.
  2. New Jersey Conscientious Employee Protection Act (CEPA), N.J. Stat. § 34:19-1 to § 34:19-14.
  3. Public employees whistleblower act, N.J. Stat. § 11A:2-24.
  4. Occupational safety and health retaliation, N.J. Stat. § 34:6A-45 (180 days to file complaint with N.J. Department of Labor).

New Mexico

  1. Common law wrongful termination claim.
  2. Public employees, Whistleblower Protection Act of 2010, N.M. Stat. § 10-16C-1 to § 10-16C-6.
  3. Occupational safety and health retaliation, N.M. Stat. § 50-9-25 (30 days to file complaint).

New York

  1. New York, health care workers whistleblower statute, N.Y. Labor Code § 741.
  2. New York, general whistleblower protection acts, N.Y. Labor Code, § 215 and § 740.
  3. New York, public employee whistleblower act, N.Y. Civ. Serv. § 75-b.

North Carolina

  1. Common law wrongful termination claim.
  2. Retaliatory Employment Discrimination Act, N.C. Gen. Stat. § 95-240 to § 245 (also including occupational safety and health retaliation).
  3. Public employee whistleblower act, N.C. Gen. Stat. § 126-84 to § 126-88.

North Dakota

  1. Common law wrongful termination claim.
  2. Whistleblower Act, N.D. Cent. Code § 34-01-20.

Ohio

  1. Common law wrongful termination claim.
  2. Ohio Whistleblower Protection Act, Ohio Rev. Code § 4113.51 to § 4113.53.
  3. Health care whistleblower protection, Ohio Rev. Code § 4113.512.
  4. Nurses’ whistleblower statute, Ohio Rev. Code § 4723.33.

Oklahoma

  1. Common law wrongful termination claim.
  2. Public employee whistleblower act, Okla. Stat. tit. 74, § 840-2.5.
  3. Occupational safety and health retaliation, Okla. Stat. tit. 40, § 403(B).

Oregon

  1. Common law wrongful termination claim.
  2. Oregon, health care facilities retaliation, Oregon Rev. Stat. § 441.044, § 441.046 (health care facilities); § 443.453 (hospices and other residential facilities).
  3. Oregon whistleblower statute, Oregon Rev. Stat. § 659A.199 to § 659A.236.
  4. Oregon’s Safe Employment Act, or complaints to Oregon OSHA, Oregon Rev. Stat. § 654.062 (30 days to file complaint).

Pennsylvania

  1. Common law wrongful termination claim.

Rhode Island

  1. Rhode Island Whistleblowers’ Protection Act, R.I. Gen. Laws § 28-50-1 to § 28-50-9.
  2. Occupational health and safety retaliation, R.I. Gen. Laws § 23-1.1-14(a), § 28-20-21(a) (30 days to file complaint).

South Carolina

  1. Common law wrongful termination claim.
  2. Public employees whistleblower act, S.C. Code § 8-27-10 to § 8-27-60.
  3. Occupational health and safety retaliation, S.C. Code § 41-15-510 to § 41-15-520 (30 days to file complaint).

South Dakota

  1. Common law wrongful termination claim.
  2. Public employees whistleblower act, S.D. Codified Laws § 3-6D-22.

Tennessee

  1. Common law wrongful termination claim.
  2. Tennessee Public Protection Act, Tenn. Code § 50-1-304.
  3. Occupational health and safety retaliation, Tenn. Code § 50-3-106(7), § 50-3-409(a) (30 days to file complaint).

Texas

  1. Common law wrongful termination claim.
  2. Texas health care whistleblower act, Texas Health & Safety Code § 161.134.
  3. Texas nursing homes, retaliation, Texas Health & Safety Code § 260A.014, § 260A.015.
  4. Texas hospice, retaliation, Texas Health & Safety Code § 142.0093(a).
  5. Texas assisted living facilities, retaliation. Texas Health & Safety Code § 247.068(a).
  6. Public employees whistleblower act, Texas Gov’t Code § 554.002.
  7. Occupational health and safety retaliation, Texas Labor Code § 411.082.

Utah

  1. Common law wrongful termination claim.
  2. Occupational health and safety retaliation, Utah Code § 34A-6-203 (30 days to file complaint).

Vermont

  1. Common law wrongful termination claim.
  2. Health care employees retaliation, Vt. Stat. tit. 21, § 507 to § 509.
  3. Long term care facilities retaliation, Vt. Stat. tit. 33, § 7508.
  4. Occupational health and safety retaliation, Vt. Stat. tit. 21, § 231 and § 232 (30 days to file complaint).

Virginia

  1. Common law wrongful termination claim.
  2. Virginia whistleblower statute, Va. Code § 40.1-27.3 (effective July 1, 2020).
  3. Hospital employee retaliation, Va. Code § 32.1-125.4.
  4. Nursing homes, retaliation, Va. Code § 32.1-138.4.
  5. Assisted living facilities, retaliation, Va. Code § 63.2-1730.
  6. Occupational health and safety retaliation, Va. Code § 40.1-51.2:1 to § 40.1-51.2:2 (60 days to file complaint).

Washington

  1. Common law wrongful termination claim.
  2. Washington health care retaliation statute, Wash. Rev. Code § 43.70.075.
  3. Occupational health and safety retaliation, Wash. Rev. Code § 49.17.160 (30 days to file complaint).

West Virginia

  1. Common law wrongful termination claim.
  2. Public employees whistleblower act, W.Va. Code § 6C-1-1 to § 6C-1-8.

Wisconsin

  1. Common law wrongful termination claim.
  2. Wisconsin health care employee retaliation, Wis. Stat. § 146.997.
  3. Public employees whistleblower act, Wis. Stat. § 230.90.

Wyoming

  1. Common law wrongful termination claim.
  2. Health care facility employees, Wyo. Stat. § 35-2-910(b).
  3. Occupational health and safety retaliation, Wyo. Stat. § 27-11-109(e) (30 days to file complaint).

* * *

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.