Can I Refuse to Work If My Facility Does Not Have Proper Personal Protective Equipment?
The number 1 question that I have been asked during this time of COVID-19 is, “Do I have to work if my facility does not have personal protective equipment?”
Unfortunately, my response is not going to be popular. The truth is that the Oregon State Board of Nursing issued a position statement declaring that, “The Board has determined that nurses cannot refuse a patient care assignment because the organization is following Oregon Health Authority Public Health Division recommendations regarding PPE and other infection control practices rather guidelines of the World Health Organization or Centers for Disease Control and Prevention." This statement has been updated by the Board to read
"Nurses cannot refuse an assignment solely because the employer is utilizing OHA guidelines rather than WHO or CDC guidelines."
After conversations with other nurse attorneys, I believe that other states feel the same way as does Oregon. They consider a refusal to work to be patient abandonment or job abandonment.
At this difficult time, nurses are the epicenter of this pandemic crisis. You do have a choice. If you believe the facility does not have proper equipment, you can give proper notice and resign. However, if you leave and abandon your job without notice, you can face disciplinary action with the Board.
It is unfortunate that our country was not prepared and placed nurses in these vulnerable positions, but you can decide for yourself what is best for you in protecting yourself and your family as well as your license.
Ms. Brown is per her listed credentials, both an attorney and an RN.
Based on her credentials as an attorney, I take issue with the, in my opinion, professionally lacking legal perspective that she provided, on a public forum, for nurses in my state, when based upon the actual statement posted by Oregon's BON. I look forward, hopefully, to her clarification, as you said, in black and white.
Based on her credentials as an RN I am offended, as a fellow RN, from an advocacy perspective, that she failed to identify many of the powerful tools we have available to protect ourselves, as a group. I am not looking for kind words or emotional support.
Even the new statement argues that nurses cannot refuse an assignment due to a hospital following OHA guidelines and not the WHO or CDC.
"Nurses cannot refuse an assignment solely because the employer is utilizing OHA guidelines rather than WHO or CDC guidelines."
It also states that the BON does not expect RNs to work without PPE. Proper PPE for suspected or confirmed covid-19 patients outside of the ICU, ED, or AGPs is gown, gloves, surgical mask, and eye protection per OHA. I don't agree with this, but that is what they are going with as of right now.
I take that to mean that an RN could not refuse an assignment based upon the lack of an N-95 - at least in the eyes of the BON.
As a manager in an LTC I just want to give my experience with the struggle right now to get PPE. Our main supplier is giving us literally NOTHING. Everything is on back order. We have over 50 open orders right now for gowns and masks from different manufacturers waiting to be filled. They have only allotted places so much, but we don't even get what we are allotted because of everything being on back order. This all started back in January when everything was put on allocation. We have placed orders through different suppliers only to have them cancelled or they are pending on back order, or what we received was questionable quality. We keep getting told "it will be in next week", but next week comes and goes and the expected shipping date constantly changes. We contacted our local state Healthcare association and put in a request for PPE (government). We got a whopping 50 surgical masks, 25 gowns, and one box of gloves. With a recent Norovirus outbreak in the midst of Covid19 and almost 20 residents on precautions, that amount doesn't even last a day when used appropriately. There will likely come a time very soon when our currently supply is nearly exhausted and we are going to have to start improvising some way. The CDC and state agencies know this is a real issue and we have been told we will not be cited for not having adequate PPE as long as all efforts to obtain have been exhausted. I couldn't imagine having our staff quit or refuse to provide cares to our residents, because what happens then and who will take care of these people? On the other hand I understand the risk of working with inadequate PPE and I personally don't want to do it either, but what do you do when there is none? It isn't right to abandon these people who depend on us for care and it isn't their fault. What do we do? This is truly a nightmare for our healthcare industry and nobody is choosing this.
Specializes in Psychiatry, Community, Nurse Manager, hospice.
On 4/1/2020 at 5:23 PM, Lorie Brown RN, MN, JD said:
This is what was sent out by the Oregon Board of Nursing where I took the quote. However it appears the Board has modified it slightly.
But how do you get from there to what you wrote about not being allowed to quit your job? Giving notice is a courtesy to the employer, not a legal obligation.
I too, am disappointed in you. Lawyers are supposed to be able to fight. Where is your advocacy?
On 4/1/2020 at 2:40 PM, Lorie Brown RN, MN, JD said:
Can I Refuse to Work If My Facility Does Not Have Proper Personal Protective Equipment?
The number 1 question that I have been asked during this time of COVID-19 is, “Do I have to work if my facility does not have personal protective equipment?”
Unfortunately, my response is not going to be popular. The truth is that the Oregon State Board of Nursing issued a position statement declaring that, “The Board has determined that nurses cannot refuse a patient care assignment because the organization is following Oregon Health Authority Public Health Division recommendations regarding PPE and other infection control practices rather guidelines of the World Health Organization or Centers for Disease Control and Prevention." This statement has been updated by the Board to read
"Nurses cannot refuse an assignment solely because the employer is utilizing OHA guidelines rather than WHO or CDC guidelines."
After conversations with other nurse attorneys, I believe that other states feel the same way as does Oregon. They consider a refusal to work to be patient abandonment or job abandonment.
At this difficult time, nurses are the epicenter of this pandemic crisis. You do have a choice. If you believe the facility does not have proper equipment, you can give proper notice and resign. However, if you leave and abandon your job without notice, you can face disciplinary action with the Board.
It is unfortunate that our country was not prepared and placed nurses in these vulnerable positions, but you can decide for yourself what is best for you in protecting yourself and your family as well as your license.
“Patient abandonment” is and has always been a thing with nursing boards, and the line has been quite clear - to the point that many boards won’t even accept “complaints” regarding licensees who quit their jobs without notice - as long as they have not accepted a patient assignment.
The reason Oregon’s statement is so inflammatory is this muddling of “job abandonment” - and “patient abandonment” - abandoning a job might make administration mad, but it has never been twisted into a licensing issue before in anything that I’ve read. Unless you’re in the army, you’re not property of your employer and you can quit at any time, for any reason, or no reason at all, even if it’s inconvenient for your employer. Indeed, being fired without notice is also incredibly inconvenient for employees.
The “social contract” language in their statement is apparently a manipulation of weasel-words to back up an unsustainable position- that one can be “forced” to accept a patient-care assignment. One could go out on a limb and say that refusal of an assignment because of race, creed, etc would be a licensing issue, but arguing safety standards is the thinnest of slivers of law. One that earned these guys in Oregon a rightful amount of disdain, and one that destroys any air of honesty or fairness. They deserve to be called out for this for being the “flat Earthers” that they are, not encouraged.
I couldn't imagine having our staff quit or refuse to provide cares to our residents, because what happens then and who will take care of these people? On the other hand I understand the risk of working with inadequate PPE and I personally don't want to do it either, but what do you do when there is none? It isn't right to abandon these people who depend on us for care and it isn't their fault. What do we do? This is truly a nightmare for our healthcare industry and nobody is choosing this.
Quitting is the only viable option for employees who are placed in unhealthy conditions by their employers when government has abdicated responsibility for worker safety. We’ve got a hundred years or more of history in this country of allowing business interests to denigrate and often actively campaign to destroy union membership. Unions give employees an opportunity to have a real “meeting of equals” to voice concerns without quitting.
When business interests succeed as well as they have in “dividing and conquering” employees, there’s only one option left for the lone and unrepresented employee - and that’s the unilateral withdrawal of service. Even if you “can’t imagine it”, it’s the system we have and it’s “fair” under the law.
Employers don’t get to be “capitalist” at annual raise time and “socialist” when life gets hard. Pick one and own your choices.
Job abandonment is not the same as patient abandonment. A nurse can quit at will after the report was given. Giving a notice and working for 2 more weeks without proper PPE? Yeah, right.
My opinion (not legal advice, or formal engineering or OH&S advice) is that medical personnel who choose to work in a COVID-19 environment are going above and beyond the call of duty. With regard to employers who tell health care workers they cannot wear even their own PPE, however,
If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.
You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)
Your right to refuse to do a task is protected if all of the following conditions are met:
Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and
You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and
A reasonable person would agree that there is a real danger of death or serious injury; and
There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
You should take the following steps:
Ask your employer to correct the hazard, or to assign other work;
Tell your employer that you won't perform the work unless and until the hazard is corrected; and
Remain at the worksite until ordered to leave by your employer.
If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.
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An ethical issue arises here that does not exist in workplaces that are just making a product for money, as a health care provider's refusal to perform dangerous work means patients will not get the care they need. In addition, failure to provide adequate PPE is due to force majeure as opposed to an employer intentionally cutting corners or not caring about safety. My position is that all doctors, nurses, and others who risk exposure to this disease deserve enormous credit (and collectively, the nation's civilian counterpart of the Medal of Honor), but any hospital or other system that intentionally cuts corners, or tells people to not wear their own PPE if none else is available, should be reported to OSHA.
I would say the best move would be for all nurses to drop to PRN status. Then when they are begging you to work, you can give them stipulations, like either give me PPE or no coronavirus patient.
I don't see how a nurse wouldn't feel responsible for the rest of the patients he or she could be infecting by knowingly taking care of patients without protection. Should you go to the grocery store if you know you did that? Should you even go home?
There must be a better way than risking the lives of ourselves and everyone we come in contact with, just because hospitals don't want to spend the price gouged amount. They cant say that saving $6.30 for a mask is worth all those lives. Pay what it takes. Or, the nurses behind the desks always deserving Oscars for pretending like they don't understand the nurse's plight can get on up and put their families and patients at risk by working without PPE.
When are we as nurses going to quit allowing ourselves to be victimized? It is long past time we take our place at the table and demand rights. Advocacy does NOT end at the bedside. Out highest advocacy should be in the government, where we advocate for ourselves, our patients, our communities, and country. We have lawmakers who have zero understanding of little else than the almighty dollar, let alone the human body (especially ones with a uterus). The country is screwed without us!! It's high time we take that power and shove it down their throats and demand an equal seat at the table to be heard and demand action. I am sick of the choice of care taking being used to manipulate and guilt us into subservience. The laws are severely skewed to all of our detriment, self, patient, etc. Our lives are worth more than their filthy money!!!
what you all are not considering is the fact that you took an oath to be a Nurse and to assist the physician and patients. By Not going to work you are abandoning your job, your profession, and your Colleagues. What if you became ill and there were no nurses willing to care for you? or your family? The Nurses these days (Millennial's) don't seem to have the same Work or professional ethic that we older Nurses have (Babyboomers) Its too bad! What happened to you all. You all think you are so Entitled and don't really seem to care about your fellow neighbors, or colleagues. If you don't go in, I hope your BRN revokes your license because you don't deserve it.
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Lorie Brown RN, MN, JD
7 Articles; 119 Posts
This is what was sent out by the Oregon Board of Nursing where I took the quote. However it appears the Board has modified it slightly.