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Hospitals Walk Legal Tightrope as Workers Speak Out on Virus

May 29, 2020, 9:01 AM

Clashes between hospitals and employees who speak out about their fears and frustrations over the coronavirus—either in-house, publicly on social media, or in the press—has sparked a new litigation trend.

Sarah Cusick, a Washington, D.C., hospital worker, sued her employer for wrongful termination, claiming the hospital fired her for social media posts voicing concerns that it wasn’t following federal and D.C. Covid-19 patient screening and social distancing policies.

Two Chicago-area nurses separately sued a hospital and a nursing home for firing them in retaliation for also complaining about allegedly inadequate safety measures.

And a doctor in Washington state said a hospital fired him for expressing worries about its Covid-19-related safety procedures on social media and in the press after management allegedly didn’t take his views seriously.

Similar lawsuits are probably in the pipeline, an attorney said, based on disciplinary measures taken by hospitals during the height of the pandemic. And even more are likely on the way, given the current economic upheaval and job losses.

“With terminations and furloughs happening in every sector, including health care, there may be an increase in litigation asserting that the application of employers’ social media policies violated employees’ rights,” attorney Anne M. Murphy told Bloomberg Law. Murphy is a partner at Arent Fox in Boston, where she counsels hospitals.

Employees who’ve lost jobs could file federal labor law claims, claims under federal and state worker health and safety whistleblower protection laws, and state common law retaliatory discharge claims, Murphy said.

But hospitals may be able to slow the trend by taking a more measured approach to enforcing social media policies that emphasizes their interests in providing truthful, nonmisleading information and respecting patient privacy, while simultaneously developing outlets for workers to express concerns, Murphy and communications specialists David Jarrard and Tim Stewart told Bloomberg Law.

Now isn’t the time for strictly enforcing policies that limit employees’ speech, they added.

Clear Communications Essential

“Clear and accurate information and communication is paramount in a public health emergency,” and hospitals have a duty to provide it, Murphy said.

Multiple and inconsistent messages can lead to disinformation and panic. “Controlling the message—and who delivers it—is the best way to make sure the public gets the truth,” she said.

Hospitals also must comply with the Health Insurance Portability and Accountability Act, which requires them to keep patients’ protected health information confidential and guard it from intentional or inadvertent disclosures.

Hospitals adopted social media policies to help them meet that obligation. While most policies don’t forbid employees from using social media, they restrict what employees can say or post. For example, policies usually forbid employees from posting pictures of patients without prior written permission.

Hospitals have reminded workers about the importance of adhering to these policies during the pandemic, Murphy said. But they should adopt a “balanced viewpoint” when enforcing them that takes the paramount importance of protecting patient confidentiality into account while recognizing that employees have health and safety concerns and addressing them in a constructive way, she added.

HIPAA also prohibits hospitals from allowing news outlets to enter and film in their facilities—a policy that remains in force, the Health and Human Services Department and the American Hospital Association reminded hospitals recently.

‘Bending’ Policies

Jarrard said that the usual “rules of the road don’t necessarily apply in these circumstances,” and hospital policies may need to bend a little.

Jarrard is president and chief executive officer of Jarrard, Phillips, Cate & Hancock, a Nashville-based company that offers strategic communications consulting to health-care providers.

The idea that employers may not have been fully geared up to protect and support their caregivers in fighting the coronavirus has created “an incredible moment of friction,” leading these professionals to publicly air their concerns, Jarrard said.

And the doctors, nurses, and other front-line caregivers putting their lives on the line are viewed by the public as heroes with a high credibility rating, he said. Blocking information from these professionals when the public wants to know more about how the medical community is handling the crisis could bring more scrutiny of hospitals and hurt their reputations, Jarrard said.

Recognizing Employee Needs

Reports of disciplinary measures have been uncommon, so most hospitals likely have taken a reasonable approach, Jarrard said.

But some have made the news for disciplining employees for their speech. These institutions likely have “a culture where doctors and nurses already feel marginalized,” and the circumstances are just exacerbating it, Tim Stewart, vice president of Jarrard, Phillips, said.

Hospital leaders can fix that by being as transparent as possible, Jarrard said.

Measures such as increasing accessibility to hospital leaders through “town halls” or their participation in patient bedside visits can show employees that leaders are sympathetic to their concerns, Stewart told Bloomberg Law.

It can also provide workers with information and tools they need to communicate responsibly, should they feel the need to do so, he said.

Whistleblower Actions

Federal and state laws prohibit employers from taking retaliatory action against employees who report workplace health and safety concerns, Murphy said.

The American Nurses Association recently condemned “employers that retaliate against nurses for advocating on behalf of themselves and their patients” and sent a letter discussing its concerns to the federal Occupational Safety Health Administration.

The organization urged nurses who say they have been retaliated against for speaking out to file complaints with OSHA, and included a link to OSHA’s online whistleblower complaint form on their website.

OSHA has received 1,000 virus-related whistleblower complaints, according to the agency.

Federal law doesn’t allow people who have been retaliated against for reporting health or safety violations to sue companies directly, but OSHA could sue on their behalf. That may include workers disciplined for talking about equipment shortages or a lack of personal protective equipment.

Employees also may be able to file lawsuits under state laws. Some states, like California, have laws specifically protecting health-care workers from retaliation for reporting unsafe patient care, in addition to general whistleblower protection laws.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com; Cheryl Saenz at csaenz@bloombergtax.com

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