Threatened For Wearing A Mask Or Asking For More PPE? Here Are Your Legal Protections

The nurse who was told to remove her mask on the labor and delivery floor so she wouldn’t scare patients, then reprimanded when she didn’t. The ICU clinician who brought in a protective hood, was told to take it back home, then felt his job was threatened when he resisted. The doctor who was told he’d be fired if he spoke to the press about not having enough masks in his hospital.

These are all cases reported to WBUR by the people involved. None of them would tell their story on the record for fear of further retaliation by hospital administrators. Similar stories are being told around the country. Now a coalition of doctors, nurses and attorneys is trying to spread the word: health care workers have a legal right to complain about inadequate protection.

“That type of threatening of employees by hospital administration … falls in clear violation of not only federal whistleblower statutes but Massachusetts' own health care whistleblower act,” says Dr. Sejal Hathi, one of the organizers of the advocacy coalition and a resident at Massachusetts General Hospital. Hathi helped organize the letter because she is distressed by what she’s hearing from other hospitals in Massachusetts and beyond.

Hathi and colleagues are circulating a letter that cites the federal protections for health care workers who protest unsafe conditions, lets hospital administrators know that there are attorneys ready to represent employees who are threatened or fired, and calls such actions “unseemly” at this time.

“While the nation is at war against coronavirus, we do not need to remind you that doctors, nurses and hospital staff are our front line. It is incumbent upon us to protect them, now more than ever,” reads the letter, which is addressed to “Dear [Hospital CEO/General Counsel] fill in the blank.”

Hathi says she was contacted by six Boston-area hospital employees shortly after the letter began circulating online last week and one clinician said he used it to respond to a threat within his hospital. Hathi says she is not aware of any medical staff who’ve filed whistleblower complaints with the federal Occupational Safety and Health Administration (OSHA).

Michael Felsen, a former Department of Labor regional solicitor for New England, says workers who face repercussions if they ask for more masks, gowns or gloves - and file an OSHA complaint - should not expect quick action.

“OSHA is very seriously understaffed,” Felsen says, “there was a big backlog of OSHA whistleblower cases before COVID and that backlog undoubtedly is going to increase significantly as a result of COVID.”

Federal regulations do not specifically require hospitals to protect staff against exposure to an infectious disease, but OSHA issued guidance on April 13th saying it would prioritize investigation of complaints about inadequate personal protective equipment (PPE) by health care workers during the coronavirus. Complaints from warehouse, grocery store, pharmacy and other employees considered essential will be handled informally, with a letter to the business owner.

“Workers will be relying on their own efforts to get their employer to comply with safety precautions, or just the good-will of the employer,” Felsen says.

With regard to health care workers, the American Hospital Association says it knows there is not enough PPE and that health care workers are worried about keeping themselves and family members safe. The association says hospitals are conserving gear while joining other leading provider groups in urging President Trump to require more production of masks, eye protection and gowns.

And the group notes that many staff at many hospitals are speaking out about the shortages.

“Our health care workers are our most valuable resource in responding to COVID-19 and stopping its spread,” says Robyn Begley, American Hospital Association senior vice president and chief nursing officer, in an email. “Every day, we have seen many frontline staff like physicians and nurses give TV and print interviews and take to social media to discuss the need for supplies, equipment and surge capacity.”

Begley notes that hospital policies about talking to the press vary.

Some health care workers say all the attention on their colleagues’ complaints is an unfortunate distraction right now, when the focus must be on the surge of patients in Massachusetts and other hotspots. Hathi’s response: if we can’t protect ourselves, we can’t protect our patients.

Hathi says she realizes that hospitals are scrambling to secure PPE and that the shortage is not their fault, but cracking down on employees who complain or want to discuss remedies or is not the right response.

“That doesn’t excuse that behavior,” she says. “Paramount in any crisis is transparency. As soon as you lose the trust of your employees, all hell breaks loose.”