ESSENTIAL OR DISPOSABLE? HEALTHCARE WORKERS' RIGHT TO REFUSE HAZARDOUS WORK.

Date01 October 2021
AuthorCoryea, Christa

Introduction 1364 I. Existing Frameworks for Worker Safety 1366 A. Statutory Protections for Those Who Refuse to Perform Dangerous Work 1367 i. Section 502: Abnormally Dangerous Conditions 1368 ii. Section 7: Protected Concerted Activity 1370 B. Regulatory Protections for Those Who Refuse to Perform Dangerous Work 1372 C. Healthcare Workers' Rights Under Existing Labor Law 1374 D. Healthcare Workers' Safety During the COVID-19 Pandemic 1377 i. Hospital Conditions During COVID-19 1378 ii. Systematic Failure to Protect Healthcare Workers 1381 II. Exploring Potential Reforms to Enforce Healthcare Workers' Rights 1383 A. Maintaining the Status Quo 1383 B. Further Restrictions on Healthcare Workers' Rights 1385 C. Rely on Administrative Action 1387 D. Expand Section 502 1389 E. Waive Section 8(g) Notice Requirements 1390 F. Allow Healthcare Workers to at Any Time Refuse to Perform Dangerous Work 1392 G. Expand Section 7 Protections 1393 III. Allowing Healthcare Workers to Protect Their Safety Through Concerted Activity 1394 A. Reconciling Section 7 with the Healthcare Industry 1394 B. The Importance of Allowing Healthcare Workers to Refuse Hazardous Work 1395 C. Rationale for Employer Responsibility 1397 D. The Advantages of Worker over Agency Action 1398 E. Advantages of a Collective over an Individual Right 1400 F. Advantages of Section 7 over Section 502 1401 G. Advantages of Expanding Section 7 Protections 1402 Conclusion 1402 INTRODUCTION

On March 1, 2020, the first confirmed case of the novel coronavirus (COVID-19) was identified in New York City. (1) Within weeks, New York City became the epicenter of a major COVID-19 outbreak in the United States. (2) Hospitals found themselves unprepared for the flood of contagious patients who needed care. (3) Earlier that March, managers had confiscated masks from worried nurses, (4) and they suddenly found themselves without enough ventilators to go around. (5)

At one Manhattan hospital, Mount Sinai West, staff were forced to use garbage bags as makeshift protective gear and reuse disposable surgical masks. (6) On March 17, 2020, one of the nurses, Kious Kelly, was diagnosed with COVID-19. (7) The next day he texted his sister, "I'm okay. Don't tell Mom and Dad. They'll worry." (8) A few days later, he was dead. (9) By mid-April, at least 26 medical workers in New York City had been killed by the COVID-19 virus. (10)

Medical staff have faced an unprecedented degree of danger since COVID-19 reached the United States. They were on the frontlines working with contagious patients, often with only makeshift protective equipment." While the public has treated healthcare workers as heroes, (12) hospital management has exploited many by mismanaging existing protective equipment, pressuring infected staff to come to work before finishing quarantine, and failing to provide crucial information to unions. (13)

U.S. labor law affords workers a variety of protections against unsafe working conditions. For example, Section 502 of the Labor Management Relations Act (LMRA) does not consider it a strike when workers refuse to perform dangerous tasks. (14) The National Labor Relations Act (NLRA) allows workers to ensure their safety through protected concerted activity. (15) Additionally, the Occupational Safety and Health Administration (OSHA) provides regulatory protections to workers placed in dangerous situations. (16)

Unfortunately, healthcare workers' freedom to rely on these protections is limited. When healthcare workers were added to the NLRA in 1974, Congress was concerned that strikes or other work stoppages could disrupt patient care. (17) It added Section 8(g), which stipulates that workers at healthcare institutions must give notice before engaging in concerted activity (18) and limits their ability to negotiate with their employers for more effective safety measures. (19) Under current case law, it is unclear how this would affect their freedom to refuse to perform dangerous work.

Although medical workers are covered by the NLRA, they face unique limitations on their right to engage in concerted activity and to protect their work safety. This Note advocates for labor law reforms to allow workers at healthcare facilities to advocate for their own safety. Part I describes existing legal frameworks. Part II explores different possibilities for reform. Part III recommends changes to Section 7 of the NLRA, which protects concerted activity, and Section 8(g), which limits healthcare workers' rights to engage in strikes and protests.

  1. EXISTING FRAMEWORKS FOR WORKER SAFETY

    Currently, few cases have directly addressed the rights of healthcare workers to protect their safety. (20) There are sources of law that address worker safety generally, but these do not touch on the specific needs of healthcare workers. The NLRA discusses the policy interest in keeping healthcare workers on the job while giving them the freedom to advocate for their rights. (21) However, neither the statute nor subsequent case law address how this interest would apply during a public health crisis on the scale of the COVID-19 pandemic.

    As the global pandemic reached the United States, healthcare workers were more essential than ever but also more vulnerable. The scale of the outbreak was unprecedented, and medical staff had to learn on the job how to treat the COVID-19 virus and control its spread. (22) As underprepared hospitals were flooded with contagious patients they did not know how to cure, the size of the pandemic and COVID-19's contagiousness created a crisis that the 1974 Congress could not have imagined when it added the carve out for healthcare workers to the NLRA. (23)

    The 1974 Congress placed limits on healthcare workers' right to engage in concerted activity with the idea that this right would have been primarily used to resolve economic conflicts between workers and managers. (24) For healthcare workers in such situations, continuity in patient care would be a priority. (25) During the past year, however, workers at healthcare facilities have risked their lives and well-being to treat contagious patients with little support from their employers and restricted bargaining rights. (26) The existing labor law framework cannot adequately address this issue and has fallen short of properly protecting workers. (27)

    1. Statutory Protections for Those Who Refuse to Perform Dangerous Work

      Federal labor law currently contains two provisions that allow workers to refrain from work when they fear for their safety. The first, Section 502 of the LMRA, states that an employee is not striking if she refuses to work because she reasonably fears for her safety. (28) The second, Section 7 of the NLRA, allows workers to abstain from work if they are enforcing a right in their collective bargaining agreement. (29)

      i. Section 502: Abnormally Dangerous Conditions

      As described above, federal labor law allows workers to advocate for their own safety. The right to refuse hazardous work is most explicitly addressed in Section 502 of the LMRA. This provision provides that employees may refuse to perform a task if they act "in good faith" and "because of abnormally dangerous conditions for work." (30) On its face, Section 502 gives employees fairly broad power to protect their own safety.

      The National Labor Relations Board (Board), which oversees the enforcement of the NLRA, developed the following test: workers must demonstrate by a preponderance of the evidence (1) that they had a good-faith belief, (2) that working conditions were abnormally dangerous, (3) that they stopped work because of this belief, (4) that this belief is supported by ascertainable, objective evidence, and (5) the danger was an immediate threat to employee safety. (31) Any work stoppage which meets these conditions is not a strike for the purposes of the NLRA. This applies even to unionized workers with a no-strike provision in their collective bargaining agreement. (32)

      The right underlying Section 502 is incredibly important to workers who may otherwise have to choose between keeping their jobs or risking their lives. In practice, however, its protections are limited. The provision does offer a loophole to avoid no-strike clauses, which is important because strikes are strictly controlled under American labor law. (33) However, Section 502 does not provide any affirmative rights. (34) Workers who rely on Section 502 may not face the consequences they would for striking, but the statute's language does not guarantee them reinstatement or backpay. (35) It merely says that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike." (36) The provision does not truly empower workers to refuse unsafe work but only mitigates the potential consequences of doing so.

      Even if the Board does grant workers reinstatement or back pay, in practice they may not receive it. This occurred most notoriously in 77V5, Inc. v. NLRB. (37) In 1981, unionized employees at a manufacturing plant worked closely with depleted uranium. (38) The plant did not have adequate safety precautions and fell below standards set by the Tennessee Division of Radiological Health. (39) As the union tried to negotiate a new collective bargaining agreement with better safety provisions, they organized a walkout. (40) Management responded by hiring replacement workers. (41)

      Litigation over the case dragged on for over 16 years. (42) The Board ultimately held in favor of the employees and created the definitive test to determine whether a work stoppage is protected by Section 502. (43) After the final Board ruling, the case was appealed to the Sixth Circuit. The appellate court upheld the Board's legal conclusions, but determined that the case had stretched on too long and that it was no longer practical to give the employees in TNS...

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