Health care workers’ rights in the fight against COVID-19
By Grant Burnette LeFever, Esq.
Attorney at Law
Last updated April 9, 2020
As South Carolina hospitals brace for a surge of COVID-19 patients, workplace safety and health is a growing concern for health-care workers on the frontlines of the fight against COVID-19, the disease caused by the novel coronavirus. A nationwide shortage of N95 respirators and other personal protective equipment (PPE) has sparked outcry from the medical community and the public about the lack of resources being provided to essential health care personnel most at risk for exposure to COVID-19. The situation is so dire that, in South Carolina, as elsewhere, private citizens have mobilized to make masks for health-care workers desperate to extend the lives of limited PPE and protect themselves during the pandemic.
The COVID-19 crisis raises crucial questions about what rights health-care workers have when they feel their working conditions pose a substantial risk to the safety and health of not only themselves, but also of their families and those they serve. The novelty of the virus complicates the answers to these questions, as does the severe shortage of resources facing health-care employers.
Though situations are changing and evolving rapidly, here is a rundown of protections doctors, nurses, CNAs, respiratory therapists, admitting clerks, EMTs, paramedics, midwives, dentists, dental hygienists, and others have on the job, whether they work in a hospital intensive-care unit, emergency room, hospice center, or clinic.
A key point to remember: There are strict deadlines for filing complaints, and failures to meet them can result in the complaint being dismissed. That’s why it’s important for workers to be aware of their rights.
To date, the Occupational Safety and Health Administration (OSHA), the agency charged with issuing and enforcing workplace safety and health standards, has no promulgated standards specifically addressing the spread of aerosol transmissible diseases like COVID-19. In the absence of such standards, OSHA has issued guidance intended to help employers plan for and respond to COVID-19.
The first guidance document, issued on March 9, 2020 and entitled Guidance on Preparing Workplaces for COVID-19, outlined six basic steps every employer should take to minimize worker exposure to COVID-19 and provided specific recommendations based on four worker risk levels.
OSHA also has developed supplemental guidance for health-care workers and employers, as a high-risk group. The OSHA industry guidance recommends that all health-care workers exposed to a confirmed/suspected COVID-19 patient wear gowns, gloves, NIOSH-certified disposable N95 or better respirators, and eye/face protection, among other critical safety measures.
The issue with OSHA’s COVID-19 guidance is that it is just that—guidance. It is advisory in nature, and the recommendations are non-enforceable at this time. These recommendations, however, are tied to core OSHA requirements that are enforceable. From these core requirements emerge basic worker rights that every health-care worker should know.
Workers’ rights to a safe and healthful workplace and COVID-19
Under the Occupational Safety and Health (OSH) Act, every worker has the right to “safe and healthful working conditions.” See 29 U.S.C. § 651. Employers bear primary responsibility for ensuring such conditions. The Act and parallel state law impose two important duties on employers:
- A general duty to maintain “a place of employment…free from recognized hazards that are causing or likely to cause death or serious physical harm” to employees (the “General Duty clause”); and,
- The duty to comply with specific occupational safety and health standards promulgated by OSHA.
29 U.S.C. § 654; S.C. Code Ann. § 41-15-80.
The purpose of the General Duty clause is to protect workers under special circumstances for which no standard has been adopted. It also requires employers to take additional protective measures if the employer knows a particular OSHA standard is inadequate to protect workers against the specific hazard.
As there is no specific OSHA standard to address COVID-19, the General Duty clause offers a potential means for enforcing measures necessary to maintain safe and healthful working conditions amid the COVID-19 pandemic. In fact, OSHA reminds employers of their obligations under the General Duty clause in its Guidance on Preparing Workplaces for COVID-19. Some sources speculate that this indicates a willingness to find that an employer’s failure to develop and implement measures identified in the guidance constitutes a health and safety violation.
Due to the novelty of the virus and severely limited access to PPE, however, any analysis of an alleged violation under the General Duty clause likely will turn on two of four elements necessary to prove a General Duty clause violation—that the hazard was recognized and that a feasible means to eliminate or materially reduce the hazard existed.
Health-care employers, like all employers, also have a continuing duty to comply with existing standards applicable to the work task and setting. Particularly relevant to health-care employers are OSHA’s Bloodborne Pathogens standard (29 C.F.R. § 1910.1030), Hazard Communication standard (29 C.F.R. § 1910.1200), Recording and Reporting standard (29 C.F.R. Part 1904), and, most central to the current alarm over health care workers’ safety, PPE standards (29 C.F.R. Part 1910, Subpart I).
Pursuant to OSHA’s PPE standards, health-care employers have a duty to provide and maintain safe and reliable PPE, at the very least, to workers exposed to a patient with confirmed/suspected COVID-19 or other sources of COVID-19. 29 C.F.R. § 1910.132. The PPE required depends on jobs and exposure risks.
Respirators, specifically NIOSH-approved N95 filtering facepiece respirators or better, are required when necessary to protect employees exposed to the virus through contaminated air where effective engineering controls are not feasible, such as when performing aerosol-generating procedures (like intubation, ventilation, bronchoscopy, nebulizer treatment, oxygen therapy, defibrillation, etc.) or providing direct care to confirmed/suspected COVID-19 patients. The Respiratory Protection standard, 29 C.F.R. § 1910.134, sets forth additional employer obligations, including a written program, medical evaluation, fit-testing, and training.
Significantly, OSHA has issued three recent memoranda temporarily relaxing enforcement of certain PPE standards to address the shortage of N95 respirators. In its first memorandum, dated March 14, 2020, OSHA directed field offices to “exercise enforcement discretion” concerning a health-care employer’s compliance with the Respiratory Protection standard’s annual fit-testing requirement so long as the employer makes a good-faith effort to comply with 29 C.F.R. § 1910.134 and satisfies a list of other requirements. OSHA’s second and third memoranda, issued on April 3, 2020, permit the extended use and reuse of respirators, including expired ones, as well as the use of non-NIOSH-certified, foreign respirators, under certain circumstances. Additionally, SC OSHA has issued interim guidance advising that less protective “respirators and/or masks” are acceptable if no N95 respirator or comparable respirator is available.
Every employee has a right to file a safety and health complaint with OSHA requesting an on-site inspection if she believes a serious hazard exists or her employer has not complied with OSHA standards. 29 C.F.R. § 1903.11; S.C. Code Ann. Regs. 71-508. While OSHA recommends that employees first try to resolve issues by reporting them to their supervisors, managers, or workplace safety and health committee, this is not a prerequisite for filing a complaint. South Carolina employees may file a complaint with SC OSHA or federal OSHA; however, federal OSHA will forward the complaint to SC OSHA for response. If SC OSHA determines there are reasonable grounds to believe that a violation or hazard exists, it will conduct an on-site inspection and, when warranted, issue a citation, to include a description of the violation or hazard and date by when corrective actions must be taken, and provide notice of penalty. Health and safety complaints must be filed within six months of the alleged violation, though the sooner, the better.
Workers’ rights to be free from retaliation
It is illegal for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or relating to [OSH law] or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by [OSH law].” 29 U.S.C. § 660 (c)(1); S.C. Code Ann. § 41-15-510.
“Discriminate” in this context means for an employer to take an unfavorable employment action (e.g. demoting, reducing hours or pay, denying benefits, disciplining, intimidating) against an employee for participating in protected activity.
OSHA’s anti-retaliation provision protects a broad range of activities, including, but not limited to, filing a health and safety complaint with OSHA or other relevant agency, participating in an OSHA on-site inspection, complaining orally or in writing to management about occupational health or safety matters, asking questions or expressing concerns about health or safety matters, reporting a work-related injury or illness, requesting safety data sheets, requesting copies of OSHA standards or compliance plans, and communicating with co-workers about occupational safety or health matters.
In light of the mounting number of stories about hospitals taking or threatening disciplinary action against workers who express concerns about the lack of PPE to the media, it is important to note that the OSHA Whistleblower Investigations Manual identifies “[c]ommunicating with the media about an unsafe or unhealthful workplace condition” as a protected activity, as has at least one federal district court.
Significantly, workers who believe they have been discriminated against for exercising their workplace safety rights must file a complaint with SC OSHA or federal OSHA, or both, within 30 days. Failure to file a complaint within this strict timeframe may result in the dismissal of the complaint. It is imperative that workers act quickly to preserve their rights. An experienced employment attorney at Burnette Shutt & McDaniel can help guide workers who need assistance through this time-sensitive and often complex process. Remedies available to workers unlawfully discriminated against include reinstatement, back pay with interest, other compensatory damages including attorneys’ fees, and punitive damages.
The right to refuse hazardous work
In limited circumstances, workers have a right to refuse hazardous work. OSHA regulations make clear, “[T]here is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. … However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination.” 29 C.F.R. § 1977.12(b)(1)-(2); S.C. Code Ann. Regs. 71-1012.
An employee’s right to refuse hazardous work is protected under OSHA’s anti-retaliation provision only if all of the following conditions are met: (1) where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; (2) the employee has a “good faith” belief that an imminent danger exists; (3) a reasonable person confronted with the same circumstances would agree there is a real danger of death or serious injury; and, (4) there is insufficient time, due to the urgency of the hazard, to eliminate the danger through regular enforcement channels.
OSHA advises workers exercising this right to take the following steps: (1) ask their employer to correct the hazard or to assign other work (preferably, document in writing); (2) inform their employer of their refusal to perform the work unless and until the hazard is corrected; and, (3) remain at the worksite until ordered to leave by the employer.
Employees should be aware that an employer is not required to pay workers who refuse to perform assigned tasks in the face of imminent danger, and any employee who acts in reliance on the right to refuse regulations runs the risk of discharge or other adverse action in the event a court subsequently finds he or she acted unreasonably or in bad faith. Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980). Health-care employees, especially doctors and nurses, also should be aware of any duties to patients that might interfere or conflict with their OSHA right to refuse hazardous work, such as under the Emergency Medical Treatment and Labor Act (EMTALA), S.C. Medical Practice Act, or S.C. Nurse Practice Act.
Any worker who believes he was terminated or otherwise discriminated against for exercising his right to refuse hazardous work should file an OSHA whistleblower retaliation complaint, as described above, within 30 days of the incident.
Additional worker protections
In addition to the OSHA rights described in this post, health-care workers may have additional important protections under the National Labor Relations Act, Families First Coronavirus Response Act (health care providers exempted from some provisions), S.C. Code Ann. § 44-4-530(E), and other sources of federal and state law.
Because of the complicated interplay of federal and state laws, which are quickly evolving in response to COVID-19, every situation is fact- and time- specific and must be analyzed on a case-by-case basis by experienced legal counsel, like the employment law attorneys at Burnette Shutt & McDaniel.
Burnette Shutt & McDaniel supports South Carolina’s health care professionals. From making masks to providing practical legal advice, our dedicated team of attorneys stands ready to help all members of the health care community navigate workplace safety and health amid the COVID-19 crisis. Call us at 803.850.0912 or visit burnetteshutt.law to schedule an appointment.
Grant Burnette LeFever is an employment law attorney at Burnette Shutt & McDaniel in Columbia, SC. You can reach her at GLeFever@burnetteshutt.law or 803.904.7920.
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