Healthcare workers say that speaking out about the critical needs and conditions at their facilities is the only way to compel change and save lives. However, it has cost some their jobs. If you have been discharged from your position during the COVID-19 pandemic, you may have a claim for wrongful termination.
A Duty to Inform Other Healthcare Workers
One Los Angeles nurse, Jhonna Porter, felt a duty to alert her co-workers to a seemingly dangerous change on the fifth floor of their hospital. With little notice, the hospital’s administration had converted the floor into a COVID-19 unit.
“The rumors are true,” the Ms. Porter wrote in a private Facebook group used by the floor’s staff. “Be careful.” A few days later, she posted a request for donations on her personal Facebook page. Her floor, which usually operated as a cardiac floor, was ill-equipped to deal with COVID-19 patients. The healthcare workers on the newly-converted COVID-19 floor were not being provided with adequate personal protective equipment (“PPE”). Ms. Porter stated in the post on her personal Facebook page “I’m physically ill from the mental stress. I need anything I can get.”
Within hours of the post, the hospital’s administration called Ms. Porter in for a meeting. An attorney for the hospital accused her of violating patient privacy laws, and the hospital suspended Ms. Porter without pay while it investigated.
Healthcare Facilities Receive Backlash
This move by the healthcare facility, of course, backfired. Because of the public relations wildfire that ensued, Ms. Porter’s facility reinstated her.
However, this is hardly an isolated incident. Healthcare facilities across the country are threatening front-line healthcare workers with retribution for speaking out about PPE shortages or working conditions. Healthcare workers across the country say that administrations have created policies that order employees not to speak with reporters. Some include explicit threats of discipline, while others do not.
Hospital administrators often allege that they are acting to protect patient privacy rights under the Health Insurance Portability and Accountability Act (“HIPAA”). However, HIPAA is not an issue. HIPAA’s privacy laws prohibit disclosing specific patient information. HIPAA does not bar disclosure of general working conditions. The disclosures being made by heathcare workers are not HIPAA violations. Healthcare workers say that the disclosures are their best hope for pressuring the “decision-makers” at their facilities to make changes to improve hospital conditions and save lives.
Are you a Heathcare Worker? Know Your Rights
If you have been retaliated against or terminated for speaking up about unsafe work conditions, you have certain rights. It is against the law for an employer to retaliate against an employee for exercising a protected right. While healthcare facilities have faced uncharted territory with respect to COVID-19, retaliation and termination of employees who speak out about safety concerns are not appropriate.
Forms of Retaliation
Some examples of retaliatory actions include termination, discipline, demotion, and harassment. If a negative employment action is based on the fact that an employee engaged in a legally protected activity, it can be violative of the employee’s rights. It is illegal to retaliate against employees who speak out about unsafe working conditions, such as lack of PPE, amid the COVID-19 pandemic.
Protection From Retaliation
Whistleblowers are employees who voice concerns about unsafe work conditions. 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.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.
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 Newark office at 973-878-9040, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent clients throughout New Jersey.