NYC’s Plan to Protect Medical Staff From Retaliation for Speaking Out

“I am not safe,” wrote an ICU nurse from Michigan. The nurse’s hospital, Michigan Medicine, was asking most staff to forgo wearing more sophisticated N95 masks, and barring them from bringing in their own personal protective equipment (PPE), they said. “There is a fine line between essential employees and sacrificial staff,” the nurse wrote. “By not allowing us to wear our own gear, the hospital is being negligent and disrespectful to every single person who is putting their life on the line to help these sick patients.”

This searing op-ed was published in The Michigan Daily anonymously, because its author said they feared retaliation for speaking up about safety concerns. Front-line health-care workers across the U.S. have been fired from their jobs after speaking to the press about conditions in their hospitals, or raising the alarm among their professional and social networks. New York health systems like Mount Sinai and NYU Langone Health are enforcing gag orders on their staff.

Five New York City councilmembers announced in early April that they are drafting a bill to protect front-line medical worker whistleblowers from being fired unfairly. Modeled on legislation members of the council have proposed to protect fast food workers from arbitrary firing, the law is intended to institute “just cause” protections for everyone working in New York City’s public and private hospitals — meaning that employers must provide a legal reason for firing someone —  and to establish that speaking out about safety concerns is not grounds for termination.

“Our city’s health-care workers have been a critical voice in helping us better understand the nature of the Covid-19 outbreak and how we need to improve our response to this crisis,” said councilmember Mark Levine, who chairs NYC’s Committee on Health, in a statement. “We need these workers to be able to speak freely, without fear of professional retribution when they see serious problems within our health system.”

In China, it was a doctor who was among the first to post details of the novel disease online, only to be swiftly silenced by the government. He eventually died, after contracting the virus. In the U.S., whistleblowers have been similarly central to updating the public’s understanding of the severity of the illness, and the risks for workers and patients posed by widespread PPE and ventilator shortages.

It’s thanks to anonymous front-line workers that the San Francisco Chronicle learned that Laguna Honda Hospital and Rehabilitation Center, the city’s largest nursing home, was not adequately prepared for a flare-up. It was Dr. Colleen Smith’s harrowing virtual tour in the New York Times of her Elmhurst, Queens, emergency room in that gave the world a glimpse of the chaos in New York emergency rooms. And Lauri Mazurkiewicz, a nurse who worked for Chicago’s Northwestern Memorial Hospital, warned her coworkers that N95s were safer than the face masks the hospital provided. (Mazurkiewicz was fired; she’s now suing the hospital.)

In Michigan, a day after the nurse’s anonymous op-ed was published, news broke that more than 100 medical staff at Michigan Medicine had tested positive for Covid-19. (Michigan Medicine says it has not denied anyone proper PPE, and stresses that the reason employees are asked not to use their own is because of concerns with functionality and fit.) Inspired by the nurse’s and others’ frustrations, the federal government sent 700,000 masks to the state from its stockpile; the Michigan Daily reported that most, unfortunately, were defunct and unusable.

At the federal level, labor laws do exist to protect workers from retaliation. But most non-union U.S. workers are “at-will employees” — meaning they can be fired without notice, for no stated reason at all, said Brad Lander, another Democratic NYC councilmember who’s sponsoring the bill and who introduced the original fast food worker’s just-cause proposal. Employees can still sue if they believe the reason for the firing was retaliatory —  say, because they sent an inflammatory email about an N95 shortage. But the burden is on the employee to prove it in court.

The New York proposal would flip that burden of proof to the employer to show they had a legal reason for the firing, and also make clear that whistleblowing cannot be one of the legal reasons. Currently, even health-care workers covered by a union that has more extensive employment protections are bound by hospital gag orders, says Lander. Under this legislation, “you’d know as long as you did your job well and complied with the provisions of your job that you wouldn’t have to worry,” he said. The language of the bill is still being drafted, but he hopes to make gag orders themselves illegal under the rule.

These protections are intended to apply to everyone in the health-care system — from administrative staff to janitorial workers to surgeons — and to be permanent, beyond the coronavirus emergency. In an op-ed in The Nation, Lander added that he hoped to extend just cause protections to all essential workers.

William Gould, a Stanford University labor law professor and the former chairman of the National Labor Relations Board, calls the legislation a “good policy,” but worries that some components of a law like this might be challenged on the grounds that the local protections are preempted by federal law. That will likely depend on how the final legislation is worded.

Though the details have yet to be ironed out, the legislation appears to have garnered wide support from regional labor groups like the New York Nurses Association, the Committee of Interns and Residents, and the president of the New York City Central Labor Council. Kevin Collins, the executive director of the SEIU-affiliated Doctors Council, says he endorses it, too — though his union represents doctors in New York City’s public hospitals, which have not issued any gag orders.

“One would hope that this would be replicated in other states and cities across the country,” said Collins. “You have to ask yourself, why would you not want front-line health-care workers to speak out?”

In statements to Politico and Bloomberg, hospital administrators have said they’re limiting public comment because they want their workers to avoid spreading misinformation, outdated or confidential information, or sharing posts that, in the case of NYU Langone Health, “do not reflect positively on the integrity of our hospitals.”

Collins counters that sharing concerns is central to a doctor’s line of duty. “We view speaking out as being a natural extension of being a patient advocate,” said Collins. “What we’re talking about here is patients who are Covid-positive, in the hospital by themselves. Their loved ones can’t get in there. Who’s going to speak out for them if not the front-line health care workers?”

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