Due to staffing shortages throughout New Jersey, some nurses are finding themselves pressured by their employers to report back to work while still ill with coronavirus (COVID-19). New Jersey’s hospitals are overwhelmed, with some hospitals lacking the staffing and/or beds to accept new patients.
As a result, nurses who are off from work sick and trying to get well are being forced to go back to work, even before their coronavirus test results have come back. Meanwhile, hospitals are rationing the personal protective equipment used while treating patients. Although nurses understand the extent of the disaster and how badly they are needed at work, they say they “don’t feel like management is concerned enough about their safety.” Even more pertinent to the discussion is the fact that these nurses who are being sent back to work could possibly infect other individuals.
Using a Loophole in CDC Guidance to Combat the Shortage of Health Care Workers
On April 6th, the New Jersey Department of Health issued guidelines for coronavirus-infected health care workers. It states that individuals with symptoms may return to work seven days after the symptoms first developed and three days after the fever subsides without medication with a significant improvement in symptoms (whichever is longer). The guidance also states that asymptomatic health care workers that test positive should remain at home for a week following their first positive test, or longer if symptoms arise. It has been noted that New Jersey’s guidelines appear stricter than those issued by the Centers for Disease Control and Prevention (“CDC”).
By contrast, CDC guidance dictates that a health care worker who tests positive should not return to work until the fever subsides without medication, there has been an “improvement” in respiratory symptoms, and two tests taken at least 24 hours apart come back negative.
Debbie White, president of Health Professionals and Allied Employees, the largest health care worker union in New Jersey, has stated that the CDC guidance presents hospitals with a loophole. Hospitals may decide “the recommended approaches cannot be followed due to the need to mitigate HCP (health care professionals) staffing shortages,” according to the CDC policy. Ms. White says that based on conversations with her members, it is eveident that some hospital executives in New Jersey are following the less strict CDC guidelines to combat the staffing shortages.
In the wake of this instruction that puts the public and other employees at risk, are you insubordinate if you refuse? No, you are not.CEPA is a New Jersey law that protects employees from retaliation for objecting to something that they reasonably believed violated the law. It is one of the country’s broadest whistleblower laws.
Among other things, CEPA makes it illegal for an employer to retaliate against an employee if they refuse or object to participate in actions they reasonably believe are violative of a clear public policy requirement relating to public health, safety, or welfare. Moreover, in the case of a certified or licensed health care professional, CEPA also applies to an employee who objects or refuses to participate in an activity they reasonably believed constitutes improper quality of patient care.
CEPA allows for a multitude of damages and remedies, including reinstatement to your job, lost wages and benefits, damages for emotional distress, and punitive damages. An employee may also recover attorneys’ fees from the employer.
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At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face, helping both employers and employees with legal areas including employment contracts, discrimination, law, litigation, whistleblowing, and retaliation issues. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us at 888-396-0736 or online for a free consultation. We represent clients throughout New Jersey.