We’re being flooded with calls from healthcare workers  whose employers are demanding that they work with used personal protective equipment (PPE)  or, worse, being asked to work without any PPE at all.

In hospitals and medical practices, masks in particular, including N95 masks, are almost gone.  Some hospitals are already requiring everyone to use ordinary surgical masks.  Surgical masks do not provide the same protection as N95s.  Many are being told to reuse masks, long considered an unsafe practice.  It won’t be long before nurses, doctors and home health aides are told to work without them, or with makeshift, homemade masks.

For our clients and friends in healthcare, the most common question is, “Do we have to work with used masks – or no mask at all?” Healthcare workers are particularly outraged at what their facilities are asking them to do, since, in ordinary situations, a nurse or physician would be disciplined or fired for reusing a mask.

It’s not a hopeless situation for you.  You can speak out and, in some situations, refuse to participate in unsafe practices. Your employer’s pronouncements are not the final word.  Nor is the CDC’s.  Many in positions of authority are revising their opinions for convenience, not because of the science.  The science strongly suggests these new, unsafe “policies of convenience” are putting healthcare workers in grave danger.  If you speak out, or refuse to engage in unsafe practices – and then suffer retaliation for your opposition – the final judges will be a jury of your peers in a court of law.  And know this:  Juries are made up of workers just like you – ordinary working people whose safety is also often put at risk by their employers.

If you have any questions at all about your rights, or about your ability to challenge your employer’s decisions, call us for free guidance.  But here’s some useful information to consider.

OSHA Standard 1910.132 – The National Rule

The federal Occupational Safety and Health Administration (OSHA) has a specific rule governing PPE.  The rule requires an employer to conduct an initial “hazard assessment”  to identify all hazards in the workplace, and to update these assessments as needed. Subsequent assessments are often highly specific and contextual.  So one should be already be in place in every medical facility –  physicians’ offices, outpatient surgery centers, and hospitals.  And your employer should have already conducted a new hazard assessment  pertaining to COVID-19.

In the context of healthcare,  a hazard assessment should include conversations with employees that have a unique understanding of their jobs and risks. Your employer also should look at existing problems caused by COVID-19 in your workplace, list and set priorities for  addressing those hazards, even breaking down jobs by individual tasks or steps.  Key questions include:

•  What can go wrong?
•  What are the consequences?
•  How could it arise, and where within the workplace?
•  What are other contributing factors?
•  How likely is it that the hazard will occur?

Once your employer has conducted a proper hazard assessment, it must then implement controls that physically change the work environment to prevent your exposure to the hazard. It may require your employer to change how you do your jobs.  It may temporarily halt some tasks altogether.  In many hospitals, for example, all surgeries except those that are emergent (i.e.,  must be performed within a few hours) or urgent (i.e.,  must be completed within 24 hours) have been canceled.  But it isn’t “business as usual.” It is absolutely improper for your practice or facility to insist you press on without a proper assessment and proper changes.

How to Assess Your Specific Workplace

Whether it is reasonable for your office or hospital to ask you to work with used masks or other PPE – or without it at all – depends on your situation.  Are you working in a COVID-19 unit, in a triage unit or in an emergency room?  In these settings,  your risks are grave.  You are on the front lines, where no one has screened patients prior to your contact.   On the other hand, healthcare professionals treating admitted patients (excluding OR workers), or working in a physician’s office, can likely better screen out infected patients.   So the key question is, what are the actual odds that you will in fact encounter infected patients?  The greater the risk, the greater your employer’s obligation to provide you with full equipment that has not been compromised by prior use.

Steps You Can Take

Don’t feel safe?  Here are 6 tips for specific action:

• If you feel your employer has not taken steps to appreciate the risk,  you should ask your practice or hospital to conduct an OSHA hazard assessment.   You can refer the proper persons to OSHA standard 1910.132.  You can also point them to OSHA’s publication on conducting hazard assessments.
• Ask for a copy of the hazard assessment once completed.
•  Make an internal complaint to your human resource department and, depending on where you work, to the risk manager. and to the Chief Medical Officer.  Outline your concerns and ask for new, complete PPE.
•  Consider asking coworkers to join you in your request for a hazard assessment and in making internal complaints.  It’s a fact that there is safety in numbers. You are far less likely to be the target of retaliation if you voice your concern as part of a group.
•  Wherever possible,  make specific mention of the actual law, rule or regulation that you believe is being violated by your employer. For example, OSHA imposes a general duty on all employers to provide a safe workplace.  Most states have medical and nursing standards  that require certain standards of care. For example, in one case we recently handled, we relied on a state’s Board of Nursing regulations addressing unprofessional conduct.  That regulation defined “unprofessional nursing conduct” as including using unprofessional or safe judgment, failing to take appropriate action to safeguard a patient’s welfare,  or failing to take action to protect a patient whose safety or welfare is at risk from incompetent healthcare practice.  Working without sanitary or sterile PPE arguably exposes your patients to significant risk of severe illness or death.   Healthcare regulations like this are easy to find.  You can also contact state agencies such as the Florida Department of Health  or the Agency for Health Care Administration  for guidance on where to find regulations specific to your job and workplace.
•  If you are not satisfied with your employer’s response, consider filing a complaint with OSHA here.   if you do, we again recommend that you do so as part of a group, and that you include the name of each employee in the group when completing the online OSHA complaint.  You can make an OSHA complaint anonymously, but in many cases, an employer can quickly figure out which employee(s) made the “anonymous” complaints.  That lets employers target whistleblowers while, at the same time, claiming they didn’t know who made the complaint.   So we recommend making the complaints using your actual names, making them in groups, and informing the employer in writing –  email works just fine –  that an OSHA complaint has been submitted, as soon you hit the “send” button on the OSHA website. When you make complaints like this, it is best to attach your names to it, because the law will give you strong protection against retaliation. (Anonymous whistleblowers have very little legal protection.) There is also a powerful federal law that provides further protection for employees who speak out as a group about important workplace matters.   Acting as a group is referred to as “concerted action.”

What if you Suffer Retaliation for Voicing Opposition?

If you have (a) put your complaints in writing (b) to the proper persons in your organization, (c) made clear that you are complaining about what you believe is a violation of law, rule or regulation, with specific mention of the applicable law or regulation, and then suffered retaliation, you likely have a powerful legal case for whistleblower retaliation.   Retaliation can take many forms:  termination, suspension, reassignment, cuts in hours, lost promotions, isolation – on and on.

Questions about your rights? Call us for a free, confidential consultation at 1-800-663-7999.  Our practice is limited to employee rights, and we have deep experience in pursuing justice for healthcare workers whose employers violate their rights. Please feel free to call us about your concerns, about how best to make a complaint in your workplace, or about any suspected retaliation.  There is never a charge for conferrals, and we do not limit you to a single free consultation.

Categories: Coronavirus COVID 19

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