Amid the COVID-19 outbreak, healthcare workers are taking to social media to expose faults in the system. Specifically, they are speaking out about inadequate capacity and delivery of healthcare, public procurement problems, and unlawful activity. Consequently, many have been threatened or fired – in violation of their rights.
Employees have a Right to Free Speech.
From a strictly technical standpoint, the First Amendment guarantees citizens the protection of free speech from intrusion by the government. Therefore, it does not apply to private actors, and private employers are private actors. Thus, employees working for publicly funded hospitals enjoy broader free speech protections than if they worked for a private one. But that doesn’t mean that the businesses can curb all employee speech. This is because courts have determined comments made as a regular citizen, subject to a legitimate news topic, are protected. To clarify, the pandemic is a legitimate news topic. Furthermore, the deficiencies exposed pose a risk to public health. Courts have continually upheld this type of speech is protected.
Hippa Is Not An Issue.
The Health Insurance Portability and Accountability Act provides privacy standards for keeping patient data safe. It is true that hospitals have traditionally had strict media guidelines to protect patient privacy. However, privacy laws prohibit disclosing specific patient information, but they don’t bar discussing general working conditions. The disclosures being made are not confidential under the act.
There are Relevant Labor Law Protections.
Court precedent has long recognized that employees have the right to make a wide variety of statements in the context of a labor dispute. Private-sector employees have the right to engage in concerted activity under the National Labor Relations Act (“NLRA”, 29 U.S.C. §§ 151-169). Importantly, this applies to both union and non-union settings. Section 7 of the NLRA vests employees with the right to engage in concerted action for their “mutual aid and protection.” In recent years, the National Labor Relations Board (NLRB) has been aggressive in terms of ordering the reinstatement of workers terminated for posting comments online regarding their terms and conditions of employment, including comments that are critical of their employers.
There are Special Defenses for Whistleblowers.
The healthcare workers who have chosen to speak out are “blowing the whistle” against workplace conditions that jeopardize patients and staff. Several federal and state laws prohibit employers from retaliating against employees who report such practices. Federal law that prohibits retaliation against employees for reporting workplace health and safety concerns in Section 11(c) of the Occupational Safety and Health Act (OSHA, 29 U.S.C. §660(c)). New Jersey’s Conscientious Employee Protection Act (CEPA, N.J.S.A. §§ 34:19-1 – 34:19-8) places a great deal of emphasis on employees who work in the health care industry and includes a reference to the public policy of maintaining good health care provisions for the community. In New York, Labor Code Article 20-C (NY Labor Law §740, §741) prohibits health care employers from penalizing employees who make complaints about the improper quality of patient care.
The Takeaway for Healthcare Workers.
As stated by OSHA administrator Loren Sweatt in a press release issued by the U.S. Department of Labor on April 8, 2020, “employees have the right to safe and healthy workplaces.” Furthermore, even amid COVID-19 concerns, healthcare workers maintain the rights to protect themselves and each other. Proper notification of risk to the public and to workers is critical to public confidence. Whistleblowers play a vital early warning role in that process. Therefore, retaliation against workers who report unsafe or unhealthy conditions is illegal.
Employment Attorneys At McOmber McOmber & Luber, P.C. Advocate On Behalf Of Victims Of Retaliation.
If you are a healthcare worker and any of the above examples seem like your experience at work, please let us help you. The attorneys at McOmber McOmber & Luber, P.C. take a proactive approach to each and every legal issue our clients face. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation.