Caution:  This post is not about surgical masks, scrubs, or other personal protective equipment worn by health care workers.  Instead, we discuss a state law that protects certain health care employees from retaliatory employment actions.

You likely know by now that employment actions cannot be based – in whole or in part – on an employee’s “protected characteristics.”  These characteristics include race, gender, age, religion, disability, and other characteristics protected by state and federal laws.  Decisions that are attributable to these features violate state and federal laws prohibiting employment discrimination.  Similarly, employers cannot retaliate against employees when they complain about discriminatory practices against themselves or others.

In Massachusetts, there is another employee-protecting law that applies in the health care setting.  The Massachusetts Medical Provider Whistleblower Statute safeguards health care workers who object or refuse to participate in practices of a health care facility that endanger patient health.  So, for example, if a health care facility has a practice that puts patients at increased risk for infection, an employee of the facility will be protected from job-related reprisal for objecting to such practices.  The law protects health care workers that are licensed to provide direct care to patients (physicians, nurses, etc.).

The key for employers who encounter such a scenario is to consider the nature of the health care employee’s objection.   The employee cannot gain protection under the statute simply by complaining about working conditions.  The complaint must be related to patient safety.  A recent case illustrates how the law works (and doesn’t work):

Anne Oulton worked as a cardiovascular perfusionist for Brigham and Women’s Hospital.  While pregnant, she told her supervisor that she did not want to work on cases that involved certain operative chemotherapy treatments.  She feared the treatments put her at risk to toxic exposure.   She later contacted Brigham and Women’s safety personnel and asked that they investigate the safety of these procedures.  Oulton also complained about male employees being excused from procedures involving operative chemotherapy treatments while females were not similarly excused.  She later went on pregnancy leave, and when she returned claimed her supervisor treated her less favorably than her male counterparts.  She sued, claiming run-of-the mill gender discrimination and retaliation for complaining about unequal treatment.  Oulton also raised a claim under the Massachusetts Medical Provider Whistleblower Statute.  However, that claim was easily dismissed by the court.

The problem with Oulton’s whistleblower claim was that she complained about staff safety, not patient safety.  The purpose of the statute is to enhance patient care.  If she complained that the chemotherapy treatments were dangerous to patients, she might have been able to move forward on her claim.  Instead, she complained that the practice put her and other health care employees at risk to toxic exposure.  The court quickly dismissed her whistleblower claim (though it allowed her retaliation claim based on her complaints of male favoritism to move forward).

If you find yourself wondering whether an employee’s complaint might create protections for him or her under the Massachusetts Medical Provider Whistleblower Statute, please feel free to contact any of the attorneys at Skoler Abbott.