Jhonna Porter took a selfie in a surgical mask at West Hills Hospital and Medical Center near Los Angeles and posted it to Facebook, saying supplies were being rationed from a locked cage and asking friends to donate protective gear.
"I’ll take anything I can get,” she wrote.
The 38-year-old nurse also contributed to a private chat-group of colleagues that day, March 24, telling them their ward was now exclusively for Covid-19 and indicating which rooms held infected patients.
Two days later, she was suspended without pay. Porter said she was told she’d violated the hospital’s social-media policy and the US Health Insurance Portability and Accountability Act, which protects patients’ personal information.
Now in quarantine after being exposed to the virus, Porter said she is perplexed and angry. What she posted, she said, wasn’t a transgression. “It was a safety issue.”
Across the US, hospitals are expanding rules barring employees from speaking to news media to add postings on social-networking sites and in chat-rooms. Health-care workers have been told to take down posts about their work conditions, according to the Service Employees International Union, which represents medical workers including Porter.
"They’ve been put in an impossible position,” said Jason Wojciechowski, a labor lawyer at Bush Gottlieb in Los Angeles, whose firm represents the local SEIU chapter. "They are in a legally difficult place and a morally difficult place.”
HCA Healthcare Inc, owner of the West Hills facility, wrote to staff the day of Porter’s post. "Colleagues are reminded that they should have no expectation of privacy while posting information to social networking sites,” according to the memo, which was seen by Bloomberg News. "The company reserves the right to use social media listening tools to monitor comments or discussions about the company, its colleagues, its patients and the industry posted on the internet.”
A nurse in West Hills’ emergency room said he too was suspended, accused of violating HIPAA after posting on Facebook that he was working on a Covid ward and that some of his fellow nurses had fevers. He asked not to be cited by name, worried it may prevent him from finding another job.
Hospitals have long-standing policies barring staff from speaking to news media or requiring them to be accompanied by a public relations officer when they do. Arthur Caplan, a bioethics professor at NYU School of Medicine in New York City, said that extending these policies to social media sites raises ethical and moral questions.
"This is a very murky zone,” said Caplan, who is the director of the school’s division of medical ethics. "It isn’t clear that your boss has the right to censor your social-media posts.”
One thing is clear, though, he said. "Firing your nurses in the middle of a plague is just absurd.”
West Hills director of strategic communications, Aimee Bennett, defended the hospital’s decision, saying in an emailed statement that "West Hills colleagues are expected to protect the privacy of our patients and their own colleagues.”
The Occupational Safety and Health Administration, charged with policing American workplaces, has received thousands of calls about safe work practices related to Covid-19, according to a Department of Labor spokesman. While they have the right to refuse to work in unsafe conditions, OSHA has little power to force any immediate change.
"There’s no quick solution,” said National Union of Healthcare Workers President Sal Rosselli.
For those asked to pitch in doing work outside their areas of expertise, there are worries about future liabilities given that insurance policies cover only their specialties.
"The law wasn’t designed for pandemics,” said New York employment lawyer Charles Joseph. "It’s against the law to terminate someone for refusing to do something unsafe, but everything is unsafe now.”
Some health-care workers who have been fired for protesting the lack of personal protective equipment have already filed wrongful-termination suits, with some able to claim whistle-blower status, a qualification that varies state by state. Blake Horwitz, a civil rights lawyer in Chicago, expects there to be a significant uptick as the pandemic continues and supplies further dwindle.
Horwitz is representing Lauri Mazurkiewicz, a nurse who sued Northwestern Memorial Hospital for firing her over an email to colleagues saying she wanted to wear a more protective mask on duty. Northwestern declined to comment, citing the suit, while saying it’s committed to employee safety.
"It’s a pretty stupid thing to do, to terminate somebody who is speaking out about a matter of public concern that the whole planet is concerned about,” Horwitz said. "That’s a standard whistle-blower violation.”
Since taking on Mazurkiewicz’s case, he said his firm has gotten about 30 calls from doctors and nurses who either have been or fear being disciplined for raising similar alarms over their own work conditions.
So far, Horwitz says he’s told them: "How are you going to feel two years from now when all this is done? Are you going to feel like you should have said something? What’s more important?” — Bloomberg
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