Nurses are Willing to Risk Their Lives – Shouldn’t They Have a Legal Right to PPE?

Are Nurses Being Told to Work Without Appropriate PPE?

YES – Absolutely.  We are an employment law firm that represents workers, and we are hearing this on the phone from health care workers all the time. It is covered in the lawsuit discussed below.

Why Aren’t the Nurses Speaking Out About This?

They are. Last Monday, April 20, the nurse’s union filed a lawsuit against the NY State Dep’t of Health (“DOH”).  The lawsuit raised the issue of their disputed rights to sick days, discussed in my blog post last week, and also raised the failure to supply them with minimally adequate PPE. The nurses’ union 1 has created a Protest of Assignment form (“POA”) which a nurse submits every time they have to work with inadequate PPE, when their PPE is not fit tested, or when they are required to work on equipment they have not been trained for, such as ventilators. As of April 20, 1,281 COVID POA forms had been submitted. This does not take the thousands of non-union nurses into account at all. The complaint alleges that 11% of the RN’s who are members have tested positive for COVID 19. They also note that testing is only made available to the hospitalized nurses, so many have had to get testing on their own.  This is not the only lawsuit brought by nurses – several others have been brought against specific hospitals.

What’s the Difference Between a Surgical Mask and an N95 Respirator? Why does it Matter?

surgical mask

Surgical Mask

N95 Respirator

N95 Respirator

 

 

 

 

 

 

 

 

A surgical mask is a loose-fitting, disposable device that creates a physical barrier between the nose and mouth of the person wearing it and potential contaminants in the immediate environment. An N95 Respirator looks like a mask, but is designed to achieve a very close facial fit and very efficient filtration of airborne particles. The ‘N95’ designation means that when subjected to careful testing, the respirator blocks at least 95 percent of very small (0.3 micron) test particles. This is important because the virus can be spread by very small aerosolized particles, which are given off by simply exhaling; it’s not necessary to cough, sneeze, or even speak to spread them. A surgical mask, although better than nothing, is clearly inadequate protection against the virus. N95’s come in different sizes, and must be fit tested to make sure there is a tight seal on the nurse’s face to work effectively.

How Long Should an N95 be Used For?

They were meant to be disposable, and before COVID 19, they were discarded after every encounter with any patient known or suspected to have an infectious disease. Governor Cuomo’s Task Force has said that every health care provider should be given a new N95 every day when requested, but all the nurses say they must re-use the same N95 for at least a week, and most for much longer. The manufacturers of the N95’s say that it is not known whether decontaminating them will reduce their effectiveness, because decontamination was never considered when they were made.

Are All Nurses Being Given N95’s?

No. Many are only given surgical masks. At Montefiore Medical Center in the Bronx, the nurses were told that due to a shortage of PPE, PPE would be reserved only for those patients known or suspected to have COVID 19. One nurse was issued a surgical mask but told not to wear it unless in the presence of patient who had a cough, because of a concern that patients would get alarmed. Not surprisingly, the nurse tested positive for COVID 19.

Do the Nurses Have a Strong Legal Case?

No. They are relying on a theory that failure to provide them with proper PPE is a public nuisance, and they are relying on a health code provision that only requires the hospital to provide a sanitary environment to avoid sources and transmission of communicable disease. It doesn’t say anything specific about PPE, and the attorneys defending the lawsuit will probably have a fairly easy task.

If a Nurse Refuses to Work Without PPE and is Fired, Will She Have a Good Legal Case?

No. She will not be able to successfully sue the employer, because she is an “at will” employee, and can be fired or any reason, or for no reason, at any time. This might not be true of a union nurse, who is entitled to some protections under the union contract, but non-union nurses will have absolutely no legal protection in these circumstances. Nurses can additionally be threatened with being reported to the State Board of Nursing for patient abandonment and/or neglect. This threat was made against the nurses at St. John’s Health Center in Santa Monica, CA, and they were actually suspended for refusal to treat COVID patients without N95’s.

10 nurses at Santa Monica hospital suspended for refusing to work without coronavirus protections

Is There Anything That Can be Done About This?

Yes – We at the National Employment Lawyers Association (“NELA”) are lobbying the state legislature to enact a “whistleblower law” in New York State that would give nurses job protection if they complained about any unsafe conditions or practices in any hospital or medical office. We would also like to see a whistleblower law passed that would provide real job protection for any employee who refuses to perform any illegal or immoral act when directed to do so by the employer. We have extremely inadequate legal protections of this type in New York, and it is time for this to change. If you know of any situation where a nurse or healthcare worker has suffered retaliation of any kind for complaining about inadequate PPE, please e-mail Bill Cafaro at bcafaro@cafaroesq.com.

[1] New York State Nurses Association, commonly abbreviated as NYSNA.