EXECUTIVE SUMMARY

A Minnesota nurse refused to follow his hospital’s policy on taking scrubs home and laundering them, rather than using hospital-provided scrubs. The hospital fired the nurse, who is alleging whistleblower retaliation.

  • Nurses at the hospital resisted the policy because they did not want to take COVID-19 home to their families.
  • The hospital may have been within its rights to enact the policy.
  • Risk managers often do not realize how much authority they have to dismiss employees.

A nurse in Minnesota claims he was fired for refusing to follow hospital policy regarding the use of scrubs during the pandemic, and the state nursing board is investigating his license. The nurse is suing the health system for whistleblower retaliation.

The case began when, during the early months of the pandemic, hospital managers instructed nurses to use and reuse their own scrubs instead of using garments provided by the hospital. Nurses countered they did not want to risk spreading the coronavirus by taking their scrubs home. The nurse in question was vocal in resisting the policy.

A pertinent question is whether the hospital used this policy before the pandemic or enacted it as a response, says Svetlana Ros, JD, partner with Pashman Stein Walder Hayden in Hackensack, NJ. Scrubs can be considered personal protective equipment (PPE), she says, and employers are responsible for providing and cleaning PPE.

“If they changed it because we were in the midst of a pandemic, I think that weakens their case,” Ros says. “The question becomes whether they are considered PPE. OSHA generally says you can make your employees launder their scrubs, but there is a caveat that says ‘unless the uniform or scrub has not been properly protected or become contaminated.’”

Ros says the nurse could reasonably argue the scrubs are contaminated and the employer is responsible for laundering. She wonders if the hospital provides disposable gowns to wear over the scrubs, or any other mitigating factor that would work in the hospital’s favor to say the scrubs were not contaminated.

“In general, you can’t leave [the facility] in your scrubs. Unless there’s a way to claim they are not contaminated, the hospital has more exposure because they are shifting their own responsibility to the employee,” Ros explains. “The nurse is facing a difficult situation because even if he may have been in the right, the licensing board may focus more on his character and whether his behavior was appropriate, not necessarily whether he was right or wrong.”

The whistleblower retaliation is a serious allegation for the hospital, but it could defend itself by showing the firing was the result of multiple documented instances of refusal to follow hospital policy, Ros says.

“I would imagine a good labor and employment attorney might be successful and will definitely test the bounds of the whistleblowing statute,” Ros says.

Unless state law says otherwise, it should be possible for a hospital to require employees to wash their own scrubs, says William H. Chamblee, JD, managing partner with Chamblee Ryan in Dallas. With or without resource scarcity related to COVID-19, Chamblee says a hospital can establish that rule as a condition of employment and discharge employees who refuse to follow it.

“As long as you don’t violate federal or state law, you can just walk in and terminate them. They can scream and holler and be mad, but they have no cause of action against you,” Chamblee says. “People forget that both sides can end the relationship and you can end it any time you want, as long as you don’t violate federal or state law. The hospital can follow lots of employee handbook procedures, but the bottom line is that the employer can establish conditions of employment and require employees to comply.”

Employee handbooks do change the nature of the employer/employee relationship, Chamblee says. Once an employer establishes a procedure for handling employee behavior and termination, they must follow it.

“I’ve had many conversations about similar situations with risk managers and human resources people, and I tell them that you have far more rights with regard to employees than you give yourself credit for. Risk managers and human resources directors have far more rights in dealing with troublesome employees than they believe,” Chamblee says. “This hospital in Minnesota apparently knew that they could go ahead and fire their employee, and they did. If there is a lawsuit against the hospital or health system, they absolutely will win.”

SOURCES

  • William H. Chamblee, JD, Managing Partner, Chamblee Ryan, Dallas. Phone: (214) 905-2003. Email: wchamblee@cr.law.
  • Svetlana Ros, JD, Partner, Pashman Stein Walder Hayden, Hackensack, NJ. Phone: 201) 373-2060. Email: lros@pashmanstein.com.