There is no shortage of heroes in California during the COVID-19 pandemic, especially among the doctors, nurses, and other healthcare professionals. They put themselves in harm's way every day to help others. Not only do healthcare workers put their own health at risk by doing their jobs, but they also increase the chances that they may expose their families and loved ones to the virus. Given these sacrifices, it isn't unreasonable for such workers to expect the safest possible environment for doing their critical work. In fact, California law demands it.
While federal law provides workplace protections designed to ensure the health and safety of those in the healthcare industry, California's healthcare workers receive even more robust safeguards under state law. And when hospitals, nursing homes, or other facilities fail to provide the equipment, protocols, or policies required to shield workers from unreasonable risk of harm, those workers can bring such failures to light without fear of retaliation.
Healthcare Workers in California MUST Have Necessary PPE
The California Occupational Safety and Health Act of 1973, better known as Cal-OSHA, is the state equivalent to the federal Occupational Safety and Health Act. It requires every employer in the state "to furnish employment and a place of employment that is safe and healthful for the employees therein."
This employer obligation specifically includes a duty to "furnish and use safety devices and safeguards ... which are reasonably adequate to render such employment and place of employment safe and healthful."
In the context of COVID-19, the law mandates that employers provide healthcare workers with the personal protective equipment (PPE) needed to reduce their risk of infection from patients and their surroundings.
Cal/OSHA requires employers covered by the Aerosol Transmissible Diseases (ATD) standard to protect employees from diseases and pathogens transmitted by aerosols, such as COVID-19. The ATD standard applies to, among others facilities:
- Skilled nursing facilities
- Medical offices
- Outpatient medical facilities
- Home health care
- Long-term health care facilities
- Medical outreach services
- Medical transport
- Emergency medical services
The ATD standards contain a long list of steps and precautions that employers must take to protect their workers from airborne pathogens like COVID-19. This includes providing healthcare works with, at minimum, N95 respirators or higher, isolation gowns, eye protection, and gloves. National Nurses United has published an informative one-page summary of employers' COVID-19 safety obligations under California's ATD standards.
Rights to Reasonable Accommodation
While all healthcare workers put themselves at risk treating or working in facilities with COVID-19 patients, some workers are more vulnerable than others due to preexisting medical conditions or other factors. Similarly, many healthcare workers may live with family members who are at elevated risk, such as seniors or those with immunodeficiency disorders.
If healthcare workers become ill or are members of a vulnerable population, federal and state anti-discrimination laws require employers to provide reasonable accommodation so those employees can continue to work safely. Such accommodations can include working from home, if practical for the worker's duties, or taking protected medical leave from work.
Rights to reasonable accommodation under California's Fair Employment and Housing Act (FEHA) extend to persons with disabilities who are "associated with" the employee. For healthcare workers, this means that if they live with a family member who is at increased risk, they may request an accommodation to protect those individuals from inadvertent exposure. Besides allowing telework or taking protected leave, this could include providing the employee with other literal accommodations, like temporary housing in a hotel or a different location. It is also important to note that the law expressly prohibits employers from retaliating against an employee who requested an accommodation for a disability, even if the employer granted the accommodation.
Whistleblower Protections for Healthcare Workers
Employers are not only prohibited from retaliating against workers who request a reasonable accommodation, but they also cannot take adverse employment action against an employee who reports a violation of employment, non-discrimination, or health and safety laws or regulations.
Healthcare workers who raise or report health and safety concerns have the right to be free from whistleblower retaliationunder California Labor Code section 6310. Importantly, health care workers who refuse to perform work considered hazardous to themselves or their fellow employees are protected from termination under Labor Code section 6311. Additionally, statutes like California Health & Safety Code Section 1278.5 and Labor Code Section 1102.5 protect healthcare whistleblowers who work in medical facilities and make reports to their supervisors or government agencies about unsafe conditions or other violations of the law.
At Outten & Golden, we have the utmost respect and gratitude for all healthcare workers who protect the health of those impacted by COVID-19, even at great cost to themselves and their families. We are committed to protecting the safety and rights of such workers, and we will continue to update you about the latest legal developments relating to the pandemic.
Please stay safe and contact one of our attorneys if you have concerns about your rights as a healthcare worker.