Five Questions and Answers for Healthcare Workers Facing a Risk of Infection
By Carl H. Coleman
My workplace doesn’t have adequate personal protective equipment. Is this lawful?
The Occupational Safety and Health Administration (OSHA) has specific rules that employers must follow to ensure that workers have and are properly using appropriate respiratory protection when necessary to protect their health. OSHA has confirmed that this standard remains in force during the COVID-19 pandemic. However, recognizing the national shortage of N95s (the most common particulate filtering facepiece respirator), OSHA has permitted employers to rely on alternative protections, including the extended use of N95s, the use of approved N95s that have passed the manufacturer’s shelf life, and, if neither of those options is available, the use of respirators and filters certified under standards of other countries or jurisdictions.
Unfortunately, despite the existence of OSHA standards, nursing unions and others argue that “these standards are seldom enforced unless a state integrates them into health care facility inspections.”
What can I do if my employer Is not complying with OSHA requirements?
If your workplace is not providing adequate protective equipment, you may file a complaint with OSHA and request an inspection. If the condition clearly presents “a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer,” you may have the legal right to refuse to work. Employees who exercise this right are protected by law against retaliation. In addition, under the National Labor Relations Act, employees may not be fired for engaging in concerted action to protest unsafe work conditions. Although hospital workers normally must provide ten days’ notice before striking, the law provides that refusing to work under “abnormally dangerous conditions” shall not be considered a strike.
I’m a healthcare worker who is immunocompromised. Can I be required to come to work
The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to workers with disabilities, unless doing so would impose an “undue hardship” on the business. Such accommodations might include temporarily working remotely, if feasible, or taking temporary leave. In a March 27 webinar, the Equal Employment Opportunity Commission confirmed that employees who have a pre-existing health condition that makes them particularly vulnerable to COVID-19 are entitled to request reasonable accommodations. However, it noted that employees only have a right to reasonable accommodation based on their own disabilities; they are not entitled to accommodations based on the fact that they live in the same household as another person who has a disability that puts them at risk.
As a health care worker, am I entitled to paid sick leave or family and medical leave under the recently enacted Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide paid sick leave or expanded family and medical leave to employees who are unable to work because they are quarantined and/or experiencing COVID-19 symptoms, because they need to care for an individual subject to quarantine, or they need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
However, the law applies only to certain public employers and private employers with fewer than 500 employees. In addition, small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business.
There are also specific provisions in the law limiting the applicability of paid leave to employers of health care providers and emergency responders, regardless of size. First, the law authorizes the Department of Labor to issue regulations excluding employees who are health care providers or emergency responders from taking advantage of the paid sick leave and expanded family and medical leave provisions. The Department of Labor is currently working on drafting those regulations. Second, the law authorizes employers of health care providers and emergency responders to decide on their own to exclude such workers from eligibility for taking paid leave. While employers are unlikely to do this in the case of a worker who is sick with COVID-19 and incapable of working, they might choose to limit or deny paid leave to workers who seek it to care for a child whose school is closed.
Can I be subject to professional discipline or face legal liability for refusing to treat patients during an infectious disease outbreak?
Health care professionals are not exempted from their usual patient care obligations during a pandemic. For example, physicians who have ongoing treatment relationships with patients have a duty not to abandon them. Physicians who are unable or unwilling to continue treating the patient during a pandemic must provide the patient with reasonable notice or a substitute provider who can take over the patient’s care. Failure to provide either reasonable notice or a substitute could subject the physician to professional discipline or legal liability.
Although health care providers have no general obligation to take on new patients, such an obligation may arise from particular contractual or employment relationships. For example, a physician who refuses to take an emergency call from a hospital, despite having previously agreed to being available, may face liability if a patient is harmed as a result. They can also be subject to civil fines under the federal Emergency Medical Treatment and Active Labor Act (EMTALA).
Absent a pre-existing treatment obligation, health care professionals are generally free to decide for themselves whether they are willing to work and will not be subject to professional discipline or legal liability as a result of their choice.
However, several states have laws that authorize the governor or public health officials to require health care professionals to work during a public health emergency as a condition of maintaining their professional licenses. Although these laws have not yet been invoked, as the pandemic progresses it is possible that they might be.
Carl H. Coleman is a Professor of Law at Seton Hall University School of Law and specializes in the legal, ethical, and public policy implications of medical treatment, research, and public health. He also currently serves as Academic Director of the Law School's Division of Online Learning. Professor Coleman's biography and publications are available online.