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Law360 (March 31, 2020, 9:36 PM EDT) -- As some health employers roll out policies restricting public comments about equipment shortages and other unsafe conditions during the coronavirus pandemic, a new National Labor Relations Board ruling reaffirms that such rules are on shaky legal ground.
On Monday, the labor board ordered a Maine hospital to rehire a worker it fired for writing a critical letter to the editor of her local paper, a development that comes as nurses in Massachusetts, New York and Washington say hospitals in those states have limited what workers can say to the media.
The ruling should serve as a reminder that "labor law does not take a holiday because of the COVID-19 crisis," union attorney Samuel Morris told Law360.
"It is a well-settled tenet of federal labor law that employees covered by the [National Labor Relations] Act engaged in activity for mutual aid and protection are protected from retaliation, and no union needs to be in the picture," said Morris, a partner with Godwin Morris Laurenzi & Bloomfield PC.
Former Maine Coast Memorial Hospital activities coordinator Karen-Jo Young was fired for violating a policy similar to those some hospitals have rolled out or reiterated as COVID-19 spreads. The pandemic has overwhelmed many health care facilities and decimated supplies of masks and other equipment, and many nurses have publicly demanded more protection.
Young wrote to the Ellsworth American in response to a series of articles it wrote about ongoing clashes between the hospital and its nurses' union over staffing cuts, which the union said put patients at risk. Young, who is not a nurse and is not represented by the nurses' union, cosigned these concerns in her letter. The hospital fired Young the day her letter was published, citing a policy barring staff from talking to reporters about the hospital without its permission.
The board's in-house counsel took up Young's case, saying her firing violated Section 7 of the NLRA, which makes it illegal for businesses to punish workers who take action to help their colleagues. This provision protects workers even if they aren't represented by a union, but it does not shield workers who speak out about purely personal concerns.
An agency judge sided with Young, saying board precedent holds that workers are protected when "they use a letter to the editor or another [third]-party channel to protest deficiencies in staffing levels or other working conditions that have an effect on patient care."
Maine Coast appealed the ruling to the board, which rejected its challenge Monday "for the reasons discussed in the judge's decision." The board also blocked the hospital from enforcing a rule requiring it to "involve, or obtain permission from" management before speaking to the media, but allowed an updated policy exempting NLRA-protected comments.
National Nurses United, which represents Maine Coast nurses, said "RNs have the right to speak with each other and speak publicly about their working conditions, without retaliation."
The board's ruling comes as some health care employers have tried to limit workers' comments to the press about equipment shortages and other safety concerns stemming from the coronavirus, according to multiple nurses' unions.
These employers include Tufts Medical Center in Boston, according to Massachusetts Nurses Association spokesman David Schildmeier. The hospital recently told workers not to speak to the media about coronavirus-related issues without permission, prompting the union to issue a directive reminding workers of their "absolute right" to go to the press, even without the go-ahead from management. So far, Tufts hasn't blocked workers from speaking to the media, Schildmeier said.
Carl Ginsburg, a spokesman for the New York State Nurses Association, said NYSNA-represented nurses at a Long Island hospital have declined his requests to speak to the media due to a similar policy maintained by operator Northwell Health.
"NYSNA is very disappointed about this," he said. "This is a time when people should be talking."
A Northwell spokesman disputed that it has blocked workers from speaking out, saying the network's policy tells workers to get permission before talking to the press, which some have done.
The Washington State Nurses Association has also run into policies that squelch its members, spokeswoman Ruth Schubert said. She provided Law360 with an excerpt of one hospital's note to workers reminding them "not to engage with the media," including anonymously.
Steve Bernstein, a regional managing partner with Fisher Phillips who advises employers on labor relations, said the NLRA's bar on restricting worker speech may have gotten "lost in the shuffle" for employers caught up in the pandemic. But if they take action against a worker for speaking out about working conditions, they may face the ire of the labor board.
"Against the backdrop of the COVID-19 pandemic, it wouldn't take much for employees to link their concerns to a broader population of workers," he said.
--Editing by Adam LoBelia.
Update: This story has been updated with comment from National Nurses United.
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