A doctor reports that senior staff have diverted safety equipment to their families, while health care workers are denied proper protection from exposure to COVID-19. (Courtesy photo)

What rights do physicians have when being denied protection from COVID-19?

Today’s question comes from Anonymous who asks:

“I work in health care in the Bay Area as a physician. I don’t want to say too much as I am afraid I might get fired. I am frequently exposed to COVID-19 patients. I love my job and I am proud to be on the front lines helping people who are suffering. That’s why I became a doctor in the first place. What is different now is that we are literally laying our lives, and the lives of our families, on the line every day we go into this battle.

I’m willing to do that as long as I have the proper equipment. You wouldn’t send a soldier into war with a gun and no bullets, but we are being sent into work with inadequate PPE [Personal Protective Equipment] every day. I get that we have to make do with what we have but I know that there are stores of supplies which senior medical and administrative staff have diverted for themselves and their families.

I am also fearful that we are putting patient safety at risk. I brought this up and I was told to mind my own business if I knew what was good for me. I was told that I should not get involved with things that don’t concern me and that we had to re-use our PPE. My work brings me into contact with COVID and Non- COVID patients. I am afraid that the lack of PPE is placing patients, and health care workers, at an increased threat of COVID and its complications. I am afraid that I may get fired or disciplined if I keep asking for PPE. What rights do we health care workers have under these circumstances?”

“P.S. Please tell your readers to take this seriously, follow all safety precautions, and socially distance. Once you are a patient, the distance you worry about is the distance between life and death, and that’s out of your control.”

Thank you for the years you spent studying and training to be prepared for this emergency, reporting to duty and placing your life on the line for us all. Your question involves two areas of law: 1) the right to a safe workplace, and 2) freedom from retaliation for advocating for patient care. The first question invokes the California Labor Code; the second invokes the Business and Professions Code. This article will address the application of the Labor Code. Next week’s column will address the Business and Professions Code.

California Labor Code § 6401, Duty to furnish safety devices and adopt safe practices and procedures, reads as follows: “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”

California Labor Code § 6403, Failure to furnish safety devices or adopt safe practices and procedures, reads as follows: “No employer shall fail or neglect to do any of the following: (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. (b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe. (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees. This code provision requires your employer to provide you with PPE and an environment, which under the circumstances, are reasonably adequate to render your workplace safe. Healthcare employers and facilities are also required to have a set of practices and policies in place to provide for workplace safety including policies dealing with the handling contagious patients and the use of PPE to protect employees and others.”

California Labor Code § 6406, Unlawful acts states: “No person shall do any of the following: (a) Remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment. (b) Interfere in any way with the use thereof by any other person. (c) Interfere with the use of any method or process adopted for the protection of any employee, including himself, in such employment, or place of employment. (d) Fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.

There is “no private right of action” to sue an employer to force compliance with these safety standards. An employee can call CAL-OSHA and report an unsafe work environment and they can inspect and enforce them. However, if an employee is retaliated against, in any way, for opposing violation of these laws, disclosing the violations to a supervisor or government agency, or demanding a safe workplace, an employee can maintain a legal action for what we refer to as the “wrongful termination, or retaliation, in violation of public policy” and for “whistleblowing” under California Labor Code Section 1102.5. This provides for a potential for recovery of lost wages, past and future, damages for emotional distress and, in some circumstances, punitive damages.

I suggest that you document your concerns so if you are retaliated against it is clear that it was in response to your exercising your rights to have a safe work environment. These are trying times. Hopefully nothing retaliatory will happen to you as all of our energies need to be focused on supporting you on the front lines and not in fighting legal battles. If something untoward does happen, contact an experienced employment trial lawyer to help you navigate the legal system.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions and topics for future articles to help@dolanlawfirm.com.

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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