Federal Speech Rulings May Embolden Health Care Workers to Call Out Safety Issues

Kaiser Health News

Karen Jo Young wrote a letter to her local newspaper criticizing executives at the hospital where she worked as an activities coordinator, arguing that their actions led to staffing shortages and other patient safety problems.

Hours after her letter was published in September 2017, officials at Maine Coast Memorial Hospital in Ellsworth, Maine, fired her, citing a policy that no employee may give information to the news media without the direct involvement of the media office.

But a federal appellate court recently said Young’s firing violated the law and ordered that she be reinstated. The court’s decision could mean that hospitals and other employers will need to revise their policies barring workers from talking to the news media and posting on social media.

Those media policies have been a bitter source of conflict at hospitals over the past year, as physicians, nurses and other health care workers around the country have been fired or disciplined for publicly speaking or posting about what they saw as dangerously inadequate covid-19 safety precautions. These fights also reflect growing tension between health care workers, including physicians, and the increasingly large, profit-oriented companies that employ them.

On May 26, the 1st U.S. Circuit Court of Appeals unanimously upheld a National Labor Relations Board decision issued last year that the hospital, now known as Northern Light Maine Coast Hospital, violated federal labor law by firing Young for engaging in protected “concerted activity.” The NLRB defines it as guaranteeing the right to act with co-workers to address work-related issues, such as circulating petitions for better hours or speaking up about safety issues. It also affirmed the board’s finding that the hospital’s media policy barring contact between employees and the media was illegal.

“It’s great news because I know all hospitals prefer we don’t speak with the media,” said Cokie Giles, president of the Maine State Nurses Association, a union. “We are careful about what we say and how we say it because we don’t want to bring the hammer down on us.”

The 1st Circuit opinion is noteworthy because it’s one of only a few such employee speech rulings under the National Labor Relations Act ever issued by a federal appellate court, and the first in nearly 20 years, said Frank LoMonte, a University of Florida law professor who heads the Brechner Center for Freedom of Information.

The 1st Circuit and NLRB rulings should force hospitals to “pull out their handbook and make sure it doesn’t gag employees from speaking,” he said. “If you are fired for violating a ‘don’t talk to the media’ policy, you should be able to get your job back.”

The American Hospital Association and the Federation of American Hospitals declined to comment for this article.

While the 1st Circuit’s opinion is binding only in four Northeastern states plus Puerto Rico, the NLRB decision carries the force of law nationwide. The case applies to both unionized and non-unionized employees, legal experts say.

In March, the NLRB similarly ordered automaker Tesla to revise its policy barring employees from speaking with the media without written permission.

Hospitals and health care organizations often have policies requiring employees to clear any public comments about the workplace with the organization’s media office. Many also have policies restricting what employees can say on Facebook and other social media.

Hospitals say requiring employees to go through their media office prevents the spread of inaccurate information that could damage the public’s confidence. In Young’s case, the hospital argued that her letter contained false and disparaging statements. But the 1st Circuit panel agreed with the NLRB that her letter was “not abusive” and that its only false statement was not her fault.

Health care organizations have undisputed legal authority to prohibit employees from disclosing confidential patient information or proprietary business information, legal experts say.

But the 1st Circuit panel made clear that an employer cannot bar an employee from engaging in “concerted actions” — such as outreach to the news media — “in furtherance of a group concern.” That’s true even if the employee acted on her own, as Young did in writing her letter. The key in her case was that she “acted in support of what had already been established as a group concern,” the court said.

“I think employers with a blanket ban on talking to the media need to relook at their policies,” said Eric Meyer, a partner at FisherBroyles in Philadelphia who often represents companies on employment law matters. “If you go to the media and say, ‘There are unsafe working conditions impacting me and my colleagues,’ that’s protected concerted activity.”

Chad Hansen, Young’s attorney in a separate federal lawsuit alleging discrimination based on a disability against the hospital, said she has not yet been reinstated to her job. Young would not comment.

The hospital’s parent company, Northern Light Health, said only that its news media policy — which was amended after Young’s firing — meets the NLRB and 1st Circuit requirements and will not be further changed. The new policy created an exception allowing employees to speak to the news media related to concerted activities protected by federal law.

Speech rights under the National Labor Relations Act are particularly important for employees of private companies. Although the Constitution protects people who work for public hospitals and other government employers with its guarantee of unrestricted speech, employees at private companies do not have a First Amendment right to speak publicly about workplace issues.

“I hope this case keeps alive the right of health care workers to speak out about something that’s dangerous,” said Dr. Ming Lin, an emergency physician who lost his job last year at PeaceHealth St. Joseph Medical Center in Bellingham, Washington, after publicly criticizing the hospital’s pandemic preparedness.

Lin, who was employed by TeamHealth, which provides emergency physician services at the hospital, lost his assignment at PeaceHealth in March 2020 soon after saying on social media and in interviews with news reporters that PeaceHealth was not taking urgent enough steps to protect staff members from covid. He had worked at the hospital for 17 years.

In an April 2020 YouTube interview, PeaceHealth’s chief operating officer, Richard DeCarlo, said Lin was removed from the hospital’s ER schedule because he “continued to post misinformation, which was resulting in people being afraid and being scared to come to the hospital.” DeCarlo also alleged that Lin, who was out of town for part of the time he was posting, refused to communicate with his supervisors in Bellingham about the situation. PeaceHealth declined to comment for this article.

PeaceHealth’s social media policy at that time stated that the company does not prohibit employees from engaging in federally protected concerted activity and that they “are free to communicate their opinions.” TeamHealth’s social media policy, dated July 15, 2020, states the company reserves the right to take disciplinary action in response to behavior that adversely affects the company.

Lin, who’s now working for the Indian Health Service in South Dakota, has sued PeaceHealth, TeamHealth and DeCarlo in state court in Washington claiming wrongful termination in violation of public policy, breach of contract and defamation.

Dr. Jennifer Bryan, board chair of the Mississippi State Medical Association, who publicly defended two Mississippi physicians fired for posting about the inadequacy of their hospitals’ covid safety policies, said she faced pressure from her hospital for speaking to the news media without approval.

The medical association pushed its members to talk to the media about the science of covid, while employers insisted doctors’ messages had to be approved by the media office. That reflected a conflict, she said, between medical professionals primarily concerned about public health and executives of for-profit systems who were seeking to shield their corporate image.

Bryan predicted the court ruling and NLRB decision will be helpful. “Physicians have to be able to stand up and speak out for what they believe affects the safety and well-being of patients,” she said. “Otherwise, there are no checks and balances.”

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Emerging Legal Trends in Home Care & Hospice, Part 2: Government Audits and Investigations

It’s no longer a question of “if” you will be subject to a government audit or investigation, merely a question of “when.” So, prepare now to mitigate the damage and help avoid (or at least prolong) the inevitable. Unchecked billing errors can literally threaten the very existence of your organization. Learn what auditors will be looking for and how you can respond both in advance and during an investigation, whether it’s the OIG, DOJ, UPIC, ADR, or one of the many other alphabet soup agencies who may come knocking.

Information on the Series

Beginning in May and continuing through December, NAHC will bring together the top experts in the industry to examine the most important legal topics in home care and hospice.

Home care and hospice is a highly regulated industry, as such, it forces providers to maintain a strong working knowledge of a bewildering array of legal issues just to stay in business — fortunately, NAHC has a solution. This 10-part webinar series offers an in-depth and practical analysis of the key legal topics every home care and hospice executive should understand.

Every part of your organization is impacted by legal and regulatory trends, that’s why we provide insight and guidance for everyone in your organization from clinical to finance to legal. These webinars will help your entire organization stay ahead of the curve.

Faculty: Jason Bring, Esq., Partner, Arnall Golden Gregory LLP

Pricing:

Individual Webinar: $29/member | $50/non-member
10-part Series: $199/member | $350/non-member

REGISTER FOR WEBINAR REGISTER FOR SERIES

Webinars in the Series

May 6: Patient Acceptance and Discharge
May 19: Government Audits and Investigations
Jun 9: HIPAA 101: Back to Basics
Jul 14: Fraud and Abuse: Stark and Anti-kickback Law
Sep: Employment Law Issues
Sep: Wage & Hour Law
Oct: Survey and Certification: Terminations, Sanctions, Appeals
Oct: Payment Audits and Appeals
Nov: Managed Care Contracting
Dec: Legal Considerations in Mergers and Acquisitions

Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

Thursday, May 6, 2021 | 1:00-2:00pm Eastern REGISTER FOR THE WEBINAR SERIES REGISTER FOR THIS WEBINAR More information about the series here. The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues…

Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues facing the industry today and tomorrow.

The first episode in the series is on Thursday, May 6, 2021 from 1:00-2:00PM Eastern.

Home care and hospice are highly regulated, forcing providers to maintain a strong working knowledge of a bewildering array of legal issues just to stay in business. Fortunately, the National Association for Home Care & Hospice (NAHC) has a solution. This 10-part webinar series offers an in-depth and practical analysis of the key legal topics every home care and hospice executive should understand. Beginning in May 2021 and continuing through December, NAHC will bring together the top experts in the industry to examine the most important topics your business is facing, such as:

  • Patient Acceptance and Discharge (Thursday, May 6, 2021 from 1:00-2:00PM),
  • Fraud and Abuse,
  • HIPAA,
  • Employment Law,
  • Quality of Care Compliance,
  • Mergers and Acquisitions,
  • And much more.

Every part of your organization is impacted by the legal and regulatory regime, that’s why we provide insight and guidance for every part of your organization from clinical to finance to legal. These webinars will help your entire organization stay ahead of the curve.

Home care and hospice has never been under a brighter spotlight than it is right now, from regulators, legislators, and the media. The best way to prepare for this heightened scrutiny is to learn from the best experts in the industry.

Faculty

Bill Dombi, Esq., President, NAHC

Pricing
Individual Webinar: 
$29 for NAHC members | $50 for non-members
10-part Series: 
$199for NAHC members | $350 for non-members

Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

Thursday, May 6, 2021 | 1:00-2:00pm Eastern REGISTER FOR THE WEBINAR SERIES REGISTER FOR THIS WEBINAR More information about the series here. The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues…

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