As the COVID-19 pandemic continues, health care workers on the front-lines continue to risk their own health to provide care for patients suffering from or who may have been exposed to COVID-19.  With growing worries regarding the availability of Personal Protective Equipment (PPE) (e.g., N95 masks, face shields, medical gowns and gloves), health care workers across the country are increasingly speaking out.

In doing so, though, some health care employers have run into additional problems from an employment law perspective.  Workers are alleging they have been ordered by their employers not to speak out about insufficient PPE—or even more serious, they have been terminated for speaking to the media about the problem.  With these concerns looming and more medical professionals speaking out, hospitals, doctors’ offices, and the like must take care to not violate workers’ rights or take actions that could be construed as retaliatory against those employees.    

Health care workers who are terminated or disciplined for raising concerns about inadequate PPE or COVID-19 exposure may have viable wrongful discharge claims under applicable state laws.  The majority of states have explicitly recognized some version of a common-law claim for wrongful discharge in violation of public policy, created to protect workers from termination based on public policy designed to ensure the health, safety, or welfare of the public.  In fact, some states such as California, Illinois, Massachusetts, Michigan, New York, Texas, Washington, and Wisconsin have statutory provisions specifically prohibiting retaliation against health care workers who take certain steps to report health, safety, and/or patient care concerns.

Employers of health care professionals should take the following steps to help reduce or eliminate risk.

1. Reviewing the applicable social media and media policies to ensure they include, among others, simple and clear provisions on:

   a. Patient privacy and posting of patient images;

   b. Mutual respect;

   c.  Using disclaimers such as “The views expressed on this [blog, website, post] are my own and do not reflect the view of my employer”;

   d.  Professionalism;

   e.  Not allowing social media activity to interfere with work commitments;

   f. Encouraging workers to talk with the media through public relations offices;

   g. Not speaking or posting on behalf of the institution, unless pre-approved.

2. Enforcing social media and other applicable policies consistently and in line with past precedent.

3. Not enforcing policies more harshly against those who speak out regarding COVID-19.

4. Focusing on the violation of the policy, not the content of the employee’s speech, when disciplining an employee for violating social media or media policies.

5. Avoiding negative comments about filing administrative complaints (e.g., OSHA) reporting health and safety concerns.

6. Not discouraging such administrative complaints related to COVID-19 concerns.

On the federal level, various laws may also give rise to a potential whistleblower complaint arising from PPE-related comments including, for example, OSHA’s whistleblower provisions.  In addition, government-related health care institutions face additional potential liability due to “free speech” concerns.  Employers should also keep in mind that Section 7 rights under the National Labor Relations Act apply equally to union and non-union employees.  Section 7 prohibits employers from interfering with, restraining, or coercing employees exercising their rights to engage in concerted activity for mutual benefit and to discuss working conditions, including through social media policies.  Health care entities should keep these additional considerations in mind when addressing employee conduct.