Source: Associated Press April 16, 2020
A nurse who led a protest in Providence Saint John’s Health Center in Santa Monica, California, demanding protective N95 masks when treating COVID-19 (coronavirus) patients, has been suspended for his actions. Mike Gulick was dismayed to learn that the hospital was not providing the standard of personal protective equipment (PPE) in N95 masks as administrators said that they were not necessary. Gulick was especially frustrated knowing the stark discrepancy in standards between hospitals. His wife is a nurse at nearby Cedars-Sinai Medical Center, where healthcare staff is armed with appropriate PPE.
When a fellow nurse tested positive for COVID-19 on Gulick’s ward, he and a group of his nursing colleagues told hospital administrators that they would no longer treat COVID-19 patients without N95 masks. According to the group’s representation with the National Nurses Union, the group of 10 nurses is now suspended with pay as a result of their demands.
While the Centers for Disease Control and Prevention (CDC) does not mandate that medical professionals use N95 to treat COVID-19 patients, the high level of protection that these masks offer providers should not be discounted.
Nurses all over the country have become increasingly vocal about the lack of PPE available to them. A global shortage of this equipment, particularly face masks, have led to many protests in hospitals in every part of the country. Because of the mass shortages, the CDC revised its guidelines by lowering the standard use of PPE to simply bandanas or other types of homemade protective masks.
Since that guideline revision, many nurses have had to weigh the pros and cons of protesting the change and risking being suspended from their jobs as a result of speaking out. In recent weeks, there have been more and more instances of healthcare providers testing positive for the deadly coronavirus. Some nurses have pointed out that the minimal protection they are being asked to use now would have invited discipline from their superiors in the past. What’s worse is that most of these vital healthcare workers have no means to complain about their employer’s failure to provide necessary safety precautions without risking retaliation.
Currently, in New York State, healthcare workers have no protection for making complaints regarding their safety, other than filing a complaint with United States Department of Labor under the Occupational Safety and Health Act – 29 U.S.C. § 660(c) (OSH Act). Specifically, this law states:
- No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
- Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
- Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.
As you can see, the OSH Act provides for recovery of lost wages and a court may enforce punitive damages to deter other employers from engaging in comparable egregious behavior. Unfortunately, the OSH Act does not provide for attorney’s fees or any special damages, such as emotional distress damages associated with an employer’s unlawful actions.
This lack of legislation to protect health care workers should be a wakeup call for politicians in the entire country, but especially New York State and New York City, one of the hardest-hit areas by the coronavirus. They must institute safeguards to protect our front-line workers, so they feel safe to make complaints regarding their safety and health without fear of retaliation.
Retaliation and discrimination can rear its ugly head, especially in these difficult times, as the entire world battles this coronavirus pandemic. A thoughtful and knowledgeable advocate can make a tremendous difference.
The attorneys at Risman & Risman concentrate their practice in employment and labor law on behalf of employees in the New York Metropolitan area. Consultations are free, and our legal team will work tirelessly to achieve the best result in your matter. Please call us at 212-233-6400 to discuss your inquiry.