14 minute read | April.03.2020
As the battle against COVID-19 intensifies, healthcare workers have become vocal about their perceptions of deficiencies surrounding patient care and safety within their workplaces and have expressed their views publicly on social media and other platforms. Videos, photographs, and testimonials underscore employees’ concerns about patient care and the availability of protective gear and other supplies. Healthcare employers have, at the same time, struggled to regulate the flow of information and misinformation about COVID-19 in their facilities. In some cases, healthcare employers have prohibited employees from speaking to the media without express authorization under new or existing policies.
A recent National Labor Relations Board (“NLRB”) decision brings that tension into stark relief. Maine Coast Regional Health Facilities, NLRB, 01–CA– 209105, 01–CA–212276, (March 30, 2020). In Maine Coast, a hospital activities coordinator wrote a letter-to-the-editor for The Ellsworth American with a critical take on recent staffing shortages and concerns about working conditions at her employer’s facility, along with support for the nurses’ union. The hospital subsequently terminated her employment, citing a policy that required authorization to speak with the media. An agency administrative law judge ordered the worker’s reinstatement and other relief, holding that the letter-to-the-editor constituted a protected “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”). On March 30, 2020, the NLRB affirmed the decision on appeal.
Maine Coast illustrates the risks of catch-all media policies that prohibit even protected types of communications. Not all workplace speech restrictions are unlawful, however. Sometimes, employee communications about COVID-19 cross an obvious line. Unauthorized communications that reveal confidential patient information or other confidential medical information, for example, are generally not protected, and action on that basis may be appropriate. But healthcare providers face increasingly complicated questions about communications that touch on sensitive issues regarding their facilities’ approaches to treating COVID-19. Healthcare employers must make correspondingly difficult decisions about how to address employees’ COVID-19 communications, including whether and when employee discipline is appropriate. Against this backdrop, hospitals and other healthcare facilities must also confront a complicated patchwork of federal, state, and local whistleblower and anti-retaliation laws.
Below is an overview of some of the many whistleblower and anti-retaliation laws that may come into play in the context of the COVID-19 crisis, followed by a discussion of best practices for responding to healthcare employees’ concerns. Healthcare providers should consult with counsel to ensure compliance with these and other obligations.
The federal Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 660(c), along with its state law equivalents, sets affirmative workplace safety standards. In addition to protecting against unsafe working conditions, OSHA Section 11(c) also prohibits retaliation against employees for engaging in a protected activity, including reporting workplace hazards. Section 11(c) prohibits an employer from, for example, disciplining an employee for raising issues related to potential exposure and insufficient protective equipment, subject to a good faith standard. Employees cannot be disciplined for participating in an investigation related to a complaint. Additional guidance on protected activities is available on the Occupational Health and Safety Administration’s website.
Like most anti-retaliation laws, Section 11(c) has limits. Significantly, OSHA protects employee complaints to the Occupational Health and Safety Administration or to an employer (and, under state law, to similar agencies) but does not specifically address other external complaints (including complaints to the public). OSHA also does not directly preclude discipline based on a profane or harassing complaint. Overall, however, employers should take any health and safety-related complaints seriously and avoid disciplining employees based merely on disagreement with the complaint at issue. Concerns raised on social media or elsewhere should be investigated when they become known to an employer, even if the employee does not raise them internally.
First Amendment Protections:
The First Amendment regulates the extent to which the government, as opposed to private entities, can limit free speech. Private sector employees—including employees of private non-profit and for-profit healthcare facilities—cannot raise First Amendment claims based on workplace speech restrictions.
By contrast, many employees of government-run healthcare facilities, such as veterans’ and public hospitals, are protected by the First Amendment. Government employers are limited in the extent to which they can regulate speech on an issue of public concern, such as a public health issue. COVID-19 most certainly constitutes an issue of a public concern.
Even in the context of a valid public concern, however, free speech is still subject to reasonable time, place, and manner restrictions. Speech related to a public concern is further limited by its disruptiveness. Speech that impairs the performance of workplace duties is accorded less protection than less disruptive speech. As part of the same balancing test, the employers’ interests in efficiency are considered. First Amendment protections also do not extend to speech that is part of a government employee’s core duties.
For public healthcare employees, First Amendment lines are difficult to draw. To avoid potential First Amendment issues, public healthcare employers should carefully consider what communications are detrimental to their operations and what steps they can take without imposing excessive restraints on communications about COVID-19.
National Labor Relations Act:
The NLRA—the statute at issue in Maine Coast—prohibits private sector employers from disciplining employees for engaging in “concerted activities.” 29 U.S.C. § 157. Concerted activity under the NLRA can take many forms. Employees may, subject to certain limitations, discuss working conditions and workplace safety, compensation, and other employment-related disputes without employer interference. Group refusals to work due to unsafe conditions can also be considered a form of concerted activity in some settings.
Concerted activity can be difficult to identify. Criticism on social media pertaining to the workplace and working conditions can often be considered a concerted activity. See e.g., Hispanics United of Buffalo, Inc., NLRB, 03-CA-027872 (Dec. 14, 2012). Protected activities can also include “liking” and sharing other employees’ social media content about conditions of employment. Similarly, employers generally are prohibited from instituting overly restrictive social media policies that prevent employees from voicing workplace concerns or require employees to identify themselves by their full names. Employers typically can, however, discipline employees for spreading false information, releasing confidential information, speaking on behalf of an organization without authorization, using inappropriate (e.g. sexist or racist) language, and other related misconduct.
Many healthcare workers are subject to additional restrictions on concerted activities. The NLRA requires a healthcare labor organization to provide at least ten days’ advance notice prior to any picketing or striking activities. 29 U.S.C. § 158(g). Healthcare employees are also prohibited under various statutes from engaging in conduct that would endanger patients or other healthcare staff. As with most whistleblower and anti-retaliation statutes, the NLRA does not permit employees to freely engage in unduly disruptive or inappropriate conduct under the guise of a protected activity. Nevertheless, non-adherence to the NLRA’s protections for “concerted activities” can create significant legal exposure.
False Claims Act:
The federal False Claims Act (“FCA”) governs claims of fraud with respect to the use of government funds. FCA concerns can arise when a healthcare facility receives federal funding. Some FCA violations, such as where funds are used for an impermissible purpose, are obvious. Other violations may be harder to spot, and may include, among other misconduct, falsifying research data in connection with a federal grant. See Press Release, Office of Pub. Affairs, U.S. Dep’t of Justice, Duke University Agrees to Pay U.S. $112.5 Million to Settle False Claims Act Allegations Related to Scientific Research Misconduct (Mar. 25, 2019), https://www.justice.gov/opa/pr/duke-university-agrees-pay-us-1125-million-settle-false-claims-act-allegations-related.
The FCA is notable for permitting qui tam actions, or lawsuits by individuals on the government’s behalf. Like other whistleblower and anti-retaliation statutes, the FCA prohibits employers from disciplining employees for engaging in a protected activity, which includes filing a claim under the statute. The FCA’s anti-retaliation protections also extend to other employees assisting in an FCA investigation.
The recently enacted federal CARES Act allocates approximately $130 billion to healthcare institutions. Additional FCA compliance risks follow that surge in funding. Notably, the Department of Justice (“DOJ”), recently “urg[ed]” individuals to report fraudulent billing related to COVID-19 patients. See Press Release, Department of Justice Office of Public Affairs, (March 20, 2020), https://www.justice.gov/opa/pr/attorney-general-william-p-barr-urges-american-public-report-covid-19-fraud. Internal DOJ communications reflect a similar focus. Memorandum for All United States Attorneys, Office of the Attorney General, “COVID-19 –Department of Justice Priorities,” (March 16, 2020), https://www.justice.gov/ag/page/file/1258676/download. Fraud may include upcharges and misrepresentations about procedures administered, among other types of misconduct.
Along with the above considerations, an employer should evaluate whether employees’ communications about COVID-19 either overtly allege or imply that fraud may be occurring within or on behalf of the healthcare institution. If so, in addition to investigating the allegations, employers should avoid taking any action that could be construed as punishing an employee for initiating or participating in an FCA investigation.
Other State and Local Laws:
Other state and local laws may further regulate whistleblower activities and employers’ anti-retaliation obligations. Many state and local laws provide the same basic employee protections against discipline for filing a complaint or participating in an investigation, with some distinctions from federal law.
Some states have laws in place to specifically protect healthcare employees. New York Labor Law § 741, for example, explicitly prohibits retaliation against healthcare employees for good faith complaints relating to the “improper quality of patient care.” Section 741 protections are limited to an employee’s complaints to a supervisor or a public governmental entity, as well as an employee’s refusal to participate in and/or objection to the “improper quality of patient care.” The law therefore would not protect communications with the public but does create an affirmative right of action with respect to patient care. New York Labor Law § 740 more generally prohibits retaliation against any employee who discloses or threatens to disclose to a supervisor or a public body an unlawful “activity, policy or practice” that “creates and presents substantial and specific danger to the public health or safety, or which constitutes health care fraud.” Section 740 likewise protects employees who provide information to or testify before a public body “conducting an investigation, hearing or inquiry” into such a violation of the law, or object to or refuse to participate in any such unlawful “activity, policy or practice.” Note that to invoke Section 740’s protections, an employee must show that the underlying activity was unlawful (and not, as under other laws, merely a potentially dangerous or improper practice).
Another New York law, New York Civil Service Law § 75-b 2(a), prohibits retaliation against public sector employees disclosing “to a governmental body information regarding information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.”
A similar California law protects both healthcare workers and patients from retaliation. California Health and Safety Code § 1278.5. Section 1278.5(b)(1) is broader than New York law, however, in authorizing claims in connection with retaliation for any “grievance, complaint, or report” or participating in an investigation or administrative proceeding relating to the facility’s “quality of care, services, or conditions.” Penalties for violations of the statutes include up to a $25,000 civil fine. Willful violations are a misdemeanor punishable by a civil fine of up to $75,000.
Other states have similar protections in place for healthcare workers. Illinois law protects hospital employees who disclose or report issues related to “health, safety, or welfare of a patient or the public,” or makes allegations regarding “unsafe, potentially unsafe, or dangerous care” in the context of the committee or peer review context. 210 I.L.C.S. 86/35. Texas Health and Safety Code § 161.134 broadly prohibits retaliation against healthcare employees for complaints regarding unlawful activities.
A number of states have general-purpose anti-retaliation statutes that include but are not specific to the healthcare industry. Florida Statutes § 448.102, for one, prohibits retaliation based on an employee’s complaint but requires that it be in writing to a supervisor or the employer and that the employer be given an opportunity to correct the violation. The Florida law also prohibits retaliation against employees for providing information to or testifying before a governmental entity about and/or objecting to or refusing to participate in an unlawful activity, policy, or practice.
Additional state and local whistleblower and anti-retaliation laws may also be more protective or circumscribe employers’ actions in other ways. Some laws may, for instance, be more generous balancing employee protections against employers’ ability to manage their workforce. Additionally, state privacy laws may limit an employer’s ability monitor, obtain, and utilize information posted on an employee’s social media page(s). Other states may permit actions for wrongful termination in violation of public policy premised on allegations related to employee speech and/or communications.
Healthcare employers should consider these additional factors in deciding how to respond when an employee raises a complaint related to COVID-19.
Healthcare employers are facing challenges to manage employees’ communications around COVID-19. There are steps employers can take to address COVID-19 communications and complaints without making a blanket prohibition on employees’ speech. Indeed, healthcare employers may be creating additional risks by ignoring or failing to address employees’ COVID-19 concerns.
Creating an environment in which employees feel confident in internal reporting processes can help reduce the volume of employees’ work-related activity on social media. When employees do make their concerns public, it is important to understand the legal ramifications of any resulting discipline, and how liability can be reduced by avoiding the appearance of retaliation. Below are some best practices to follow in complying with applicable laws and creating a workplace climate that encourages internal resolution of employees’ concerns during the COVID-19 outbreak and beyond.