Protecting employee whistleblowers in these COVID-19 times

LAST week, CNN reported that 10 nurses from Providence Saint John’s Health Center in Santa Monica, California were placed on administrative leave for demanding N95 masks while treating COVID-19 patients. The nurses were suspended with pay for refusing to enter COVID-19 patient rooms without N95 masks. The hospital told the nurses that there were no N95 masks and instead should wear surgical masks. However, surgical masks reportedly provide less respiratory protection.

The nurses pointed out that while coronavirus unit nurses were given surgical masks, in contrast doctors and clinicians were given N95 masks. The nurses did not believe that the hospital had a limited number of N95 masks because they saw many other colleagues in other departments wear them. When the protesting nurses continued to insist, they were suspended and sent home.

A similar scenario across the nation seems to be happening. Nurses at hospitals from California to New York are calling out and protesting the lack of protective equipment and mounting toll of preventable healthcare worker deaths. Nurses and other healthcare nurses have staged protests across the nation to demand increased supplies of N95 masks, ventilators, and hospital gowns, proper training for nurses expected to provide critical care, adequate nursing staff, and temporary housing for healthcare workers to avoid risk to their household. These nurses who are protesting face the very real threat of discipline and discharge.

In California, employees have the right to refuse to perform certain work if the said conduct violates the law or puts them in a danger. Specifically, Labor Code section 6311 provides limited protection for workers who refuse to work because of an unsafe condition in their workplace. The protection exists when both of the following conditions are met:

• A worker refuses to perform work because of a violation of a Labor Code section or a Title 8 safety order; and

• The Labor Code violation would create “an imminent hazard” to the worker or fellow workers.

Any worker who is laid off or discharged in violation of Labor Code section 6311 may sue for lost wages as a result of the layoff or discharge.

If an employee reports a violation or noncompliance with a state or federal law (for example, the employer is violating safety regulations) and the employer subsequently fired, suspended, demoted or in some way mistreated the employee, the employer may additionally be held liable for retaliation. Although whistleblower and retaliation claims are often discussed interchangeably, and claims brought by whistleblowers generally involve retaliation by an employer, there is a difference between the two types of claims. A whistleblower claim will usually involve a retaliation claim, but not necessarily the other way around.

Aside from the general Whistleblower Protection Act, California’s Healthy Safety Code also specifically provides for protections of healthcare workers who engage in whistleblowing activity and who suffer retaliation as a result. These whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility. They are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations.

A health facility shall not discriminate or retaliate against an employee, member of the medical staff, or other health care worker of the health facility because that person has done either of the following:

a) Presented a grievance, complaint, or report to the facility, to an entity or accrediting agency, or the medical staff of the facility, or to any other governmental entity; or

b) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an agency responsible for accrediting or evaluating the facility.

These are perilous times for everyone. But the persons who are most immediately in danger of contagion are the essential workers in the healthcare industry. For the healthcare workers to take care of the sick, they themselves must be protected from getting sick. Such protection must be in the form of appropriate masks and other protective equipment that prevent the spread of the deadly virus.

When it comes to the hazards brought about by retaliation, our healthcare workers should know that the law has their back and remedies are available to them.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact our office at (818) 291-0088 or visit our website at [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has obtained multi-million dollar recoveries for employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.]

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