In follow up to our Coronavirus Q&A for Employees from earlier this week, we wanted to tackle some FAQs from healthcare workers that are specific to the medical industry.
Doctors, nurses, techs and other healthcare workers are on the front line of the COVID-19 crisis and the medical industry is the quintessential “essential business” right now. As a result, there are literally millions of workers heading into work every day at hospitals and healthcare facilities across the country and many of them are worried about their safety and unsure of their rights.
Unfortunately, there is no legal playbook for employment rights during an unexpected global pandemic. But here’s what we can tell you for now.
Am I Entitled to Personal Protective Equipment (PPE)?
The general answer to this question is, of course, yes. The Occupational Safety and Health Act (“OSHA”) requires employers to provide healthcare workers with necessary PPE. In fact, the agency that enforces the Act (also confusingly known as “OSHA”) specifically recommends that that PPE for healthcare workers on the front lines of the COVID-19 crisis include gowns, gloves, N95 of better respirators, and face protection.
With that said, anyone who has picked up a newspaper or talked to a friend in the medical industry knows that PPE is in short supply these days. As a result, many healthcare workers are being forced to reuse PPE, work without it, or to provide their own.
So the question is, in the context of the current public health crisis, does proper PPE have to be provided to healthcare workers. The answer, unfortunately, is maybe. If medical facilities have the PPE on hand, they absolutely have to provide it. And if they don’t, they must make reasonable efforts to obtain it. But at this point, even OSHA has backed off on some of its regulations regarding the maintenance of PPE and recommended that where N95 masks are unavailable, employers can “consider the extended use or reuse” of those they already have. Given that OSHA is the entity charged with enforcing PPE requirements, employers may feel justified in asking staff to work without adequate PPE.
It’s worth noting before we get much further that hospitals and medical facilities are not asking folks to go without necessary safety equipment because of some malicious intent. This is not about saving money or a disregard for employees’ safety as much as it is about needing to provide medical care to the growing numbers of sick despite a dwindling supply of PPE. For healthcare workers, this may mean risking their own personal safety every time they head into work. It’s not a fair risk, but the alternative (refusing to work if you don’t have the PPE) may leave you without a job.
Which brings us to the next FAQ from healthcare workers we’re hearing a lot of…
What Can I Do if My Employer Doesn’t Have PPE or if I’m Afraid of Contracting COVID-19 at Work??
1) Consider whether your work is something that can be done remotely.
If you’re an ER doc or a nurse in the ICU, this is likely not an option. But plenty of medical professionals are fully capable of working providing their services remotely via tele-medicine these days. I’ve been impressed to hear from friends who’s kids have been seen by their pediatricians remotely or who had annual check-ins with their primary care physicians via video conference. If you’re a healthcare worker who can treat remotely, your employer really should be allowing you to do so for your own safety as well as that of your patients. [An aside: You’d think this is a no brainer, but I’ve had more than one call with doctors who are being asked to come into their offices despite being able to work remotely.]
2) Consider taking a leave of absence.
If you’re worried because you have an underlying medical condition or are at heightened risk if you were to contract COVID-19, you may be able to take leave as an accommodation under the Americans with Disabilities Act or the Illinois Human Rights Act. Alternatively, if being asked to work in potentially unsafe conditions is causing you significant anxiety, you may be entitled to leave under the Family & Medical Leave Act in relation to a serious mental health condition.
If, however, these options don’t apply to you and you are just (understandably) scared of the risk of being around so much of the disease without adequate protections, you are likely not legally entitled to leave – and your employer is likely to be stretched thin in personnel (in addition to PPE) and may need every employee it can get to address the increased patient numbers.
3) Consider making a complaint.
If you can’t work remotely and can’t take a leave, but you have concerns regarding how your employer is handling its PPE – inequitable distribution, improper usage, inadequate supplies, etc. – you should think about making an internal complaint to make those concerns known.
The possible upshot is that your employer might really listen and implement some positive changes that leave you and your coworkers better protected than you were before. This is a strange time and everyone is figuring out best practices as we go – you just may have ideas that your employer hasn’t thought of given your on-the-ground experience. So a complaint could really make a difference. We’ve compiled some pointers on how to draft and submit an internal complaint here.
However, it’s also possible that making a complaint may get you in hot water. At least one Chicago area nurse has already filed suit against her employer, alleging that she was terminated in retaliation for talking to her coworkers about the hospital’s inadequate PPE policies. It would be naive to think that retaliation is not one possible outcome of making a complaint. But you can take some comfort in the fact that retaliation for raising workplace safety concerns is illegal – so if the worst comes to pass and you wind up without a job, you will likely also have viable legal claims you can pursue. These claims can have very short statutes of limitations (as short as 30 days from when you learned of the retaliation), so if you find yourself in this situation you should take action or talk to legal counsel ASAP.
4) Consider whether you can refuse to work.
Finally, in some very extreme cases, you may have the right to refuse work. Specifically, if you’ve asked your employer to correct a safety hazard and they haven’t, you have a good faith belief that working will put you in imminent danger, a reasonable person would agree with that belief, AND there isn’t enough time to notify OSHA and ask them to conduct an inspection, then you can refuse to work without risking being fired. For more details about when and how you can invoke this right, check out OSHA’s guidance here. But note that these factors are a pretty high hurdle and most general fears about COVID-19 will not justify a blanket refusal to work.
We are planning to keep updating our Coronavirus related FAQs as this situation continues to unfold and questions arise. So check back in the future for more guidance as we help employees navigate these strange times. But before I go, let me just say a sincere and heartfelt THANK YOU from Case + Sedey to all of the medical providers on the front lines, risking their safety and that of their families and loved ones to take care of our sick and help us flatten the curve of infections day in and day out. We truly appreciate you and recognize how much of a sacrifice you are making for the good of our communities.
