Nurses’ Union Files Federal Complaint Over Defective Masks

New Jersey’s largest union for nurses and healthcare professionals has filed a complaint with the Occupational Safety and Health Administration (“OSHA”) against Virtua Health. Nurses at Virtua Memorial Hospital in Mount Holly say that they and other frontline workers were supplied with personal protective equipment (“PPE”) that is not FDA approved.

The Story

According to the complaint filed by the Healthcare Professionals & Allied Employees union, Virtua gave nurses fighting coronavirus defective masks. Virtua has been supplying its nurses with KN95 masks rather than the National Institute for Occupational Safety and Health approved N95 respirators.

What’s more, the healthcare workers say that the KN95 masks that they have been given are damaged. In addition, the nurses also report that Virtua administrators did not fit-test them for new masks.

The union (HPAE Local 5105) President Debbie White has said it is unconscionable that frontline workers are using defective equipment during a pandemic. “As a union, we are advocates for our workers and our patients,” White said. “Health care workers need to be able to work safely without fear of contracting the virus and transmitting it to other patients, coworkers, or their families.”

Virtua Health operates five hospitals and over 280 other healthcare facilities throughout New Jersey and Philadelphia. The company is South Jersey’s largest healthcare provider. The company attributes the use of the defective KN95 masks to the “global shortage” and “supply chain challenges.” The company’s Executive Vice President and Chief Operation Officer, Dr. John Matsinger, claims that the complaint is not true and the KN95 masks being used were received from the State.

Are You A Healthcare Worker? Know Your Rights

If you are a healthcare worker and find yourself in this situation or a similar situation, it is essential that you are aware of your rights. You cannot be fired for raising safety concerns or refusing to work because you fear becoming infected with the virus.

Occupational Health And Safety Administration (“OSHA”) Protections

In the event of immediate or imminent danger, OSHA provides that an employee can refuse to work. The federal Occupational Safety and Health Act (“OSH Act”) requires that employers keep the workplace free of hazards. If you were fired for notifying your employer of a COVID-19 related safety concern, you would have a valid claim for wrongful termination under the OSH Act.

OSHA provides that an employee can refuse to work in the event of an immediate or imminent danger. To satisfy the “imminent danger” standard, an employee must reasonably believe that work conditions create an immediate risk of death or serious physical harm. Two factors that are considered when determining whether a belief is reasonable include the nature of employment and the risk of contracting the virus.

In the present instance, a healthcare worker who is given defective PPE or no PPE at all would likely have an adequate claim. Healthcare workers want genuine N95 respirators that are fit-tested to ensure the masks seal around their faces. If the masks do not seal, they are not safe.

You are also entitled to file a whistleblower complaint if a negative employment action was taken against you for raising a health and safety concern.

National Labor Relations Act (“NLRA”) Protections

The NLRA protects concerted activities by employees, which includes a refusal to work because of unsafe working conditions. It protects workers from unfair labor practices and protects workers from retaliation for filing a complaint with their employer or the National Labor Relations Board.

Protection From Retaliation

Employees who voice concerns about unsafe work conditions or object to illegal business practices also cannot be fired on the basis of those complaints. Known as whistleblowers, these workers are shielded from wrongful discharge by the New Jersey Conscientious Employee Protection Act (CEPA). Employees who shed light on wrongdoing by their employer are protected under state and federal law, and can receive reinstatement to their position, back pay and in some cases a portion of whatever funds government officials recoup from the offending employer.

At the law offices of McOmber McOmber & Luber, we want to say thank you to all essential workers right now, including the healthcare workers who are risking their own lives during this pandemic. If you need help seeking benefits or navigating your rights as an employee, our legal team can serve you.

Employment Attorneys At McOmber McOmber & Luber, P.C. Advocate On Behalf Of COVID-19 Workers

Our passionate employment law attorneys understand that we are living in an unprecedented time and that for all workers, especially those who are on the frontlines of the COVID-19 pandemic, anxiety, fear, and frustration are all very real. If you are a healthcare worker, we want to reassure you that you have certain rights during this time and that you cannot be retaliated against for filing a complaint. 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, 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.