Keywords

COVID-19, personal protective equipment, whistleblowers, workplace safety, wrongful termination

 

Authors

  1. O'Neill, Nicolle APRN, CRNA, MHA

Abstract

Abstract: Healthcare professionals who raise concerns about workplace safety or other problems should be praised as heroes and changemakers. However, some whistleblowers face retaliation for speaking out, and the incidence of retaliation cases against these employees has spiked during the COVID-19 pandemic. This article reflects on the role of whistleblowers and their importance to public accountability.

 

Article Content

INTERVALS BETWEEN pandemics average 40 years, but there is no end to transgressions that cry out for a whistleblower.1 In December 2019, Chinese ophthalmologist Dr. Li Wenliang raised early concerns about the emergence of the severe acute respiratory syndrome (SARS)-CoV-2 virus and the disease it causes, COVID-19. Dr. Wenliang was widely hailed as a whistleblower after he shared concerns with other medical providers on a group chat about patients with signs and symptoms of COVID-19, which he likened at the time to SARS.2 His warnings drew the ire of Chinese authorities, who detained Dr. Wenliang a few days later for "spreading false rumors" and forced him to sign a document admitting to "illegal behavior"2 Ultimately, Dr. Wenliang contracted the disease and died from it in early February 2020. The public security bureau in Wuhan, China said in March that it had apologized to Dr. Wenliang's family for his arrest.

  
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In late January of last year, workers with the US Health and Human Services (HHS) Administration for Children and Families met American evacuees from Wuhan. While employees of the CDC were in full hazmat attire, the HHS employees working side-by-side with the CDC did not have appropriate protective gear. An HHS staff member filed a whistleblower complaint reporting the incident. In retaliation, that staff member was reassigned and told she would be terminated if she did not accept the new position.2,3

 

Whistleblowers are sometimes labeled as troublemakers, but if they end up taking their concerns to the public forum, it is usually a solution of last resort. These people should be praised as heroes and changemakers. As such, this article reflects on the role of whistleblowers and their importance to public accountability.

 

According to the Occupational Safety and Health Administration (OSHA), a subdivision of the US Department of Labor, whistleblower complaints have increased steadily in the last year. Over 4,600 complaints were being filed daily as of February 2021, up from 700 daily in April 2020.4 The Whistleblowing International Network has also witnessed a mounting number of whistleblower retaliation cases as healthcare workers fight for safe working conditions during the pandemic.5

 

Little protections

China, Poland, and India do not have whistleblower protection rights.5 Although the US Whistleblower Protection Act of 1989 protects federal employees who disclose government illegality, waste, and substantial and specific danger to public health and safety, the Whistleblowing International Network has witnessed a mounting number of whistleblower retaliation cases as healthcare workers fight for safe working conditions during the COVID-19 pandemic.5

 

For example, Lauri Mazurkiewicz, a nurse who was fired in March 2020 from her job at Northwestern Memorial Hospital in Illinois, filed a wrongful termination lawsuit after encouraging other colleagues to wear more personal protective equipment (PPE). Similarly, staff members at NYU Langone Health were threatened with termination after they alleged that the hospital had provided them with inadequate PPE.5 Many hospital corporate leaders nationwide have told providers they cannot wear their own PPE. Perhaps they were encouraging a form of groupthink that would make the virus seem less dangerous if no one were taking protective measures.6

 

Some hospitals lied to employees by saying simple face masks offered sufficient protection. One Idaho hospital admitted that if one nurse wore her N95 mask, others would want to wear N95 masks as well, and the hospital did not have enough.7

 

The American Academy of Emergency Medicine reported receiving hundreds of calls from healthcare workers who feared termination if they complained about unsafe working conditions.7 Some US nurses resorted to using makeshift PPE such as trash bags and bandanas during the first months of the pandemic.8

 

Unfortunately, many workers have been punished for speaking out against acts they feel are either unethical or a legitimate safety risk. By terminating or censoring the whistleblower, a healthcare entity punishes the employee as a troublemaker and simultaneously intimidates other employees.9

 

Then, there is the so-called "bystander effect." Social scientists have described this phenomenon to mean that the more people who witness an incident, the less likely any of them are to intervene. Sometimes a person assumes someone else will do something about a situation, and over time it becomes an accepted part of the culture. More often, the consequences of intervening just seem too intimidating for the average person.10

 

A crisis is exactly when you need creative thinking and open communication. Great ideas can come in a time of catastrophe because everyone is fighting for a shared, lofty goal. This is a time when healthcare organizations can make a choice to support their employees' creativity rather than turning them into mindless followers. For example, Dr. Bruce Spiess from the University of Florida, Gainesville, brainstormed the idea of using the disposable wrap for surgical equipment to sew into protective masks. Tests done on the masks have shown them to be as effective if not better than N95 masks. His idea is now being put into action.11

 

Whistleblowers act in a way they feel is for the good of others. Anonymous whistleblower hotlines are a recommended option, and these hotlines should be made available in all institutions. Healthcare workers can also file complaints with OSHA, or they may choose to pursue workplace retaliation claims in federal court. Whistleblowers do not want to be adversarial. If they end up going to the public forum, it is usually a solution of last resort.

 

In April 2020, OSHA released a guidance detailing how the agency was handling workplace safety complaints in healthcare facilities during the pandemic. Unfortunately, despite the mounting complaints made to OSHA daily, one OSHA employee reported around that time that the agency had not inspected any COVID-19 complaints in the employee's region.12,13

 

Additionally, Congress stripped a proposed provision from the second coronavirus response bill in March 2020 that would have required healthcare providers to implement an infectious disease exposure control plan.14 The plan would have mandated stricter workplace safety standards for healthcare workers.12 The American Hospital Association, which opposed the provision, said in a statement at the time that the proposed rules would have been "impossible to implement in hospitals due to a severe lack of N95 masks."14

 

In addition, OSHA rolled back standards designed to protect healthcare workers amid the ongoing shortage of N95 masks and other PPE. As a result, N95s could now be used for an extended period of time and reused. The relaxed rules also allowed for the use of respirators certified in other countries.12

 

Ultimately, OSHA has only been able to present recommendations but not enforce them.12 This lack of response to a once-in-a-century crisis forced many healthcare practitioners to bring their complaints to the public.

 

Although statistics show that wrongful termination complaints have a poor success rate, there have been some positive results of whistleblower actions during the pandemic. For example, the American Academy of Emergency Medicine and OSHA have issued statements reminding corporations that medical providers and first responders should be provided with adequate PPE. Furthermore, the Department of Labor issued a statement reminding employers that it is illegal to terminate, demote, or reduce an employee's hours in response to their complaints of unsafe working conditions.15,16 The American Federation of Labor has also demanded that OSHA create a temporary standard for infectious diseases in order to protect workers during the pandemic. This was followed by a petition filed with the US Court of Appeals for the D.C. Circuit, which argues that OSHA's failure to issue legally enforceable COVID-19 rules has imperiled workers.

 

Finally, additional legislation has been proposed in response to the multitude of physician terminations.17 One piece of proposed legislation, H.R. 6910, would allow physicians to advocate for their patients without fear of retribution.18

 

Whistleblowers are well aware of the risks of termination when they expose problems that their supervisors or the organization has failed to address. This is especially true of whistleblowers who speak up when their organization has a culture of forced acquiescence. These special heroes who speak out make this choice based on strong moral grounds and professional integrity. It could be argued that some fault lies with other members of the organization who do not speak out to correct problems and choose to stay silent. Not seeking a more just solution enables problems with society and moral ineptitude to continue. Hopefully, these brave champions who speak out will someday be universally recognized as heroes and changemakers instead of mere tattletales.

 

REFERENCES

 

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18. American Academy of Emergency Medicine. Important due process legislation update. 2020. http://www.aaem.org/current-news/important-due-process-bill-update. [Context Link]