Some emergency department (ED) doctors and nurses allege they were disciplined or fired after complaining about inadequate personal protective equipment (PPE), or for refusing to treat COVID-19 patients without N95 masks.1,2

“Depending on who the complaint was made to, and the specific complaint made, the hospital could have retaliation claims under OSHA [Occupational Safety and Health Administration] or state whistleblower protection laws,” says David E. Renner, JD, an attorney who works on employment and employee relations issues for the law firm of Post & Schell in Pittsburgh.

At the federal level, OSHA prohibits employers from retaliating against employees who communicate with management about occupational safety or health matters, among other things.3 In April, OSHA reminded employers that it is illegal to retaliate against workers because they report unsafe working conditions.4 Additionally, OSHA issued an interim enforcement response plan with instructions regarding the handling of COVID-19-related complaints.5 The plan says onsite inspections will prioritize high-exposure settings, which certainly includes EDs.

“This is an area that will likely see some enforcement focus by OSHA in the coming months,” says Jonathan Sumrell, JD, an attorney in the Richmond, VA, office of Hancock, Daniel & Johnson.

If an ED nurse is fired the day after complaining about PPE, it certainly looks suspicious. That kind of timing helps the employee prevail in a retaliation claim. “Hospitals will need to thoroughly document why they took an adverse employment action,” Sumrell stresses.

It always is possible the ED nurse was fired because of misconduct or budget cuts. If so, “documentation showing that decision-making process would be key for employers,” Sumrell says.

Evidence substantiating the misconduct, and that the hospital followed its disciplinary policies, is helpful for the defense. “In no event should an employee’s complaint be a factor in the decision to take adverse action against them,” Sumrell underscores. “Employers are taking a huge risk if they don’t heed that advice.”

REFERENCES

  1. American College of Emergency Physicians. ACEP strongly supports emergency physicians who advocate for safer working conditions amidst pandemic. March 30, 2020.
  2. American Nurses Association. ANA disturbed by reports of retaliation against nurses for raising concerns about COVID-19 safety. April 9, 2020.
  3. 29 U.S.C. §660(c).
  4. U.S Department of Labor’s Occupational Safety and Health Administration. U.S. Department of Labor reminds employers that they cannot retaliate against workers reporting unsafe conditions during coronavirus pandemic. April 8, 2020.
  5. U.S Department of Labor’s Occupational Safety and Health Administration. Interim enforcement response plan for coronavirus disease 2019 (COVID-19). April 13, 2020.