Grievance, 4/22/2020
Facility: United Hospital
Work location: Emergency Department
Name of Grievant: Clifton Willmeng
Date of Disciplinary Meeting: April 15, 2020
Job Title: RN
Supervisor’s name: Kelly Johnson
To Jim McGlade, and All Concerned Parties:
Whereas the senior administration of Allina United Hospital failed to appropriately prepare for global pandemic, despite years of warnings and preparedness recommendations from state, national, and global scientific communities (including CDC, HHS, OSHA, NIH, the Defense Department, US General Accountability Office, two presidential administrations, Minnesota Department of Health, and the WHO ( World Health Organization)), for reasons of personal and public health frontline hospital staff have taken independent initiative by calling attention to and modifying unsafe practice to protect our own health, the health of the patients we serve, and the health of the larger public community.
This activity, forced upon frontline staff by the above conditions, is now being exploited by hospital management via harassment of staff through coercion, intimidation, harassment, and accelerating disciplinary actions intended to discourage protected concerted activity. These actions violate the MNA collective bargaining agreement, the Minnesota Nursing Practice Act, OSHA workplace standards, Section 7 of the NLRA, and the foundational principles of nursing itself.
Moreover, it is indisputable that healthcare workers, and nurses in particular, are at extreme risk for contracting COVID-19 (see, e.g., CDC report finding 9,000 COVID-19 cases amongst healthcare workers even though “the figures in the report should be considered on the lower end since many cases have likely gone ‘unidentified or unreported.’” This fact is even more relevant in light of the inadequate PPE and infection control measures provided by employer Allina Health.
These issues have gone unresolved after numerous conversations and/or emails to ED Manager Kelly Johnson, ED Director Eric Johnson, CNO Janet Pestle, President Sara Criger, and Hospital Division Regional Quality Director Cindy Larson.
Relevant to this I bring your attention to the disciplinary proceedings that are ongoing against myself and submit this Step 1 grievance pursuant to Section 25 of the collective bargaining agreement executed between MNA and United Hospital 9 (“CBA”).
On April 15th, 2020 I was given a verbal warning for alleged violation of Allina uniform policy and Use of Personal Electronic Device policy. We will address the uniform policy first and then turn to the social media policy.
ALLEGED VIOLATION OF UNIFORM POLICY
On multiple occasions, I followed the employer’s uniform policy by changing out of my personal scrubs into hospital-supplied scrubs upon a reasonable belief that my personal scrubs had been spoiled by “potentially infectious materials” per Allina’s uniform policy (to wit: COVID-19). The employer insisted on escalating to discipline insofar as it did not believe non-visible COVID-19 particles were “potentially infectious materials.” To wit:
Part 1: Violations of the Contract Agreement Between United Hospital and Minnesota Nurses Association
The verbal warning I received for an alleged violation of Uniform Policy violates the just cause as described in Section 17 of the contract agreement between United Hospital and Minnesota Nurses Association: Discipline
- The investigation was not “Fair and objective,” in fact there was no investigation at all.
- The employer has not applied the rules and discipline even handedly and without discrimination and applied these rules disparately; for example, several other Emergency Departments within the Allina system wear hospital-supplied scrubs as a matter of course
The discipline I received for an alleged violation of Uniform Policy violates the Section 20 of the contract agreement between United Hospital and Minnesota Nurses Association: Professional Nursing Practice
- Under subsection (a), Practice Philosophy, the alleged violation contradicts the understanding that, “There is no substitute for professional judgment.” Professional judgment relating to containing a known pathogen and its potential to spread on surfaces such as personal scrubs is globally understood. In donning hospital- provided scrub clothes, we are exercising profession judgement as registered nurses.
- Subsection (a) states that, “All decisions to delegate nursing care must be based on the safety and welfare of the client”. Compelling registered nurses and other hospital staff who are routinely exposed to infectious materials to wear personal scrubs risks potential risks spread of viral contamination that is potentially fatal or permanently disabling to hospital staff, the patients, and public health.
Subsection (d), Reporting of Errors. Forcing staff to use personal scrubs is an error of basic infection prevention. Through the alleged violation, United management is punishing and harassing me for:
1. Identifying errors
2. Focusing on understanding what caused the error
3. Implementing changes to prevent recurrences
4. Limiting discipline only to misconduct or impairment.
In this instance, nurses such as myself are being penalized for following the nursing process, basic infection control measures, and utilizing their independent judgment.
The alleged violation of “Uniform Policy” violates Section 22 of the contract agreement between United Hospital and Minnesota Nurses Association: Health and Safety
The alleged violation contradictions the following subsections of Section 22:
(a) Safety Policy
(b) Equipment and Facilities
(g) Biological Hazards/Agents
(n) Which states, “The hospital will develop a plan and guidelines to reduce the risk of exposure and manage the post-exposure treatment for infectious disease. The hospital and MNA will meet to review the plan and guidelines, and to discuss and identify concerns with plan content for consideration to be included in the plan and guidelines,”
In addition to these violations of the contact, the scrubs policy itself, or “Hospital-wide Policy: Scrub Clothes Reference # UTD-Admin-064 was misrepresented to me by ED manager Kelly Johnson. She told me that I am, “…only able to change into hospital issued scrubs when your (my) scrubs become visibly contaminated.” In truth the policy says nothing of this sort. Instead, Section 3 actually is titled, “Uniforms Spoiled with Blood or Other Potentially Infectious Materials”. I raised the fact that viruses are not visible in the meeting. It did not cause any reflection in Manager Kelly Johnson, ED Director Eric Johnson, nor the HR representative Jennifer Gran. I was therefore erroneously issued a verbal warning on this basis as well, which is a clear violation of the contract.
The fact that COVID 19 is an infectious material should be obvious and apply to the Scrub Clothes policy for any hospital worker with potential to encounter contamination in United Hospital.
Finally, I am aware that the punishment for wearing hospital scrubs is arbitrary in nature. Other emergency departments in the Allina system have been offered hospital issued scrubs and are using them right now.
Part 2: Failure to offer hospital issued scrubs violates sections of the Minnesota Nursing Practice Act
Is has been shown that United Hospital failed systemically to prepare for pandemic. Exacerbating this problem is the punishment of myself for carrying out the basic premises of safe patient care and infection prevention included in nursing practice, and which are detailed in Section 148.261: Grounds For Disciplinary Action.
Because the use of personal scrubs poses a clear risk for the spread of viral contamination, nurses are risking the following sections of 148.261:
(6) Engaging in unprofessional conduct, including, but not limited to, a departure from or failure to conform to board rules of professional or practical nursing practice that interpret the statutory definition of professional or practical nursing as well as provide criteria for violations of the statutes, or, if no rule exists, to the minimal standards of acceptable and prevailing professional or practical nursing practice, or any nursing practice that may create unnecessary danger to a patient's life, health, or safety. Actual injury to a patient need not be established under this clause.
(8) Delegating or accepting the delegation of a nursing function or a prescribed health care function when the delegation or acceptance could reasonably be expected to result in unsafe or ineffective patient care.
(11) Engaging in any unethical conduct, including, but not limited to, conduct likely to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare, or safety of a patient. Actual injury need not be established under this clause.
In other words, causing an increased risk to my patients and community via unsafe infection control measures constitutes unsafe nursing practice which is punishable by the Minnesota Nurse Practice Act. Conversely, nurse management direction to so contaminate the public via sole use of personal scrubs may also be such a violation.
Part 3: Refusing Hospital Issued Scrubs Violates OSHA Standards
Two OSHA complaints have been filed by myself for unsafe working conditions. These complaints are open and have provoked additional investigation around my disciplinary proceedings and have been referred to the discrimination unit of the Minnesota Department of Labor and Industry for further evaluation. Discrimination, harassment, and intimidation of workers is a second matter which is not detailed within the course of this grievance and will be addressed later or in another forum.
Prior to my verbal warning, I have made it clear in my communications with management, both verbally and in emails, that it is my position that United leadership is breaking OSHA guidelines for scrubs not adequately protected from OPIM contamination. The gowns we are provided in COVID positive or COVID rule out rooms do not cover our lower legs and open in the back. Therefore, in wearing the scrubs I am acting consistently with the law and employee protections set forth by OSHA. Being disciplined for doing so cannot be supported by just cause and therefore violates the contract.
Please see OSHA interpretations below:
Question 6: Is it permissible for employees to launder personal protective equipment like scrubs or other clothing worn next to the skin at home?
OSHA Reply 6: In your inquiry, you correctly note that it is unacceptable for contaminated PPE to be laundered at home by employees. However, employees' uniforms or scrubs which are usually worn in a manner similar to street clothes are generally not intended to be PPE and are, therefore, not expected to be contaminated with blood or OPIM. These would not need to be handled in the same manner as contaminated laundry or contaminated PPE unless the uniforms or scrubs have not been properly protected and become contaminated.
These errors create unsafe working conditions due to viral contamination on personal scrubs and shoes. This has been raised repeatedly with hospital management and Hospital Division Regional Quality Director Cindy Larson. To date we are not being offered scrubs nor protection for foot ware. Discipline for an alleged dress code violation, when in fact, I am engaging in actions which are required to protect my health and safety, and which are consistent with OSHA regulations cannot form the basis for a just cause determination. The verbal warning must be rescinded and removed from my personnel file.
ALLEGED VIOLATION OF PERSONAL ELECTRONIC EQUIPMENT POLICY
I am being singled out by ED Manager Kelly Johnson, ED Director Eric Johnson, and HR Representative Jennifer Gran for alleged violation of “Use of Personal Electronic Equipment”. The disciplinary proceedings I am being subjected to, the surveillance of my social media pages, and the ongoing harassment of myself by hospital management violate just cause for discipline.
The harassment on this basis began on a 22 minute unsolicited phone call from ED Director Eric Johnson, Jenifer Gran, and Hospital Division Regional Quality Director Cindy Larson after I video recorded, as is my right in Minnesota, a phone call I had placed to United CNO Janet Pestle. The subject of the phone call was the need for hospital issued scrubs for health care workers, which she told me, “Are not indicated”.
The phone call to me ended with ED Director Eric Johnson demanding that I, “Take down the video!” multiple times with raised voice. Cindy Larson told me that during the same call that hospital scrubs, “Aren’t indicated”, because “COVID isn’t really viable” on scrubs. Given the contradictory scientific assertions and the escalating tone of Eric Johnson I felt too uncomfortable continuing the call at that point and hung up.
Since that time my use of personal social media and electronic equipment at United has been the subject of ongoing harassment and intimidation. There are no other employees being subjected to this targeted intimidation and discipline. In fact, ER Manager Kelly Johnson posted a photo of herself and employees in the patient drop off area of United Hospital’s emergency department on March 25 of 2020. (Included here.) On April 21st, 2020. The Allina Facebook page posted numerous photos of employees that would appear to violate the same policy I am being disciplined for. (The screenshot of that post is also included below. One of the photos includes myself.)
During my April 15th meeting with Eric Johnson and Kelly Johnson I requested examples of my violations of personal electronic equipment from Eric Johnson, which he refused to provide me. When I asked him how he was obtaining evidence of my violation of policy, he informed me, “People are sending it to me.” I asked who was sending him evidence of my violations and he refused to tell me. I asked him how he was receiving evidence of my violations and he refused to tell me. I asked HR representative Jennifer Gran who from United Hospital was scrutinizing my social media and she responded, “I am not going to answer that question.”
All of this indicates I am being watched by people of whom I am not allowed to know and punished for violations that have never been concretely shared with me.
CONCLUSIONS AND REMEDIES
I will reaffirm that United Hospital entered the COVID 19 pandemic with egregious levels of unpreparedness after ignoring advanced warnings that now pose a harmful or fatal risk to staff, patients, and public health. Because of the mismanagement of this crisis, hospital workers including myself, have been forced to compensate for confused and unprepared administrators to protect ourselves, our coworkers, the patients we care for, and the larger public. For these actions we are being unjustly harassed and punished through targeted intimidation, surveillance, and disciplinary action.
To begin to remedy these damaging, unjust and dangerous acts, I demand the following:
1. An immediate end to all disciplinary meetings relating to hospital scrub clothes for myself and all hospital workers.
2. An email to be sent immediately to all hospital employees from Hospital President Sara Criger acknowledging that COVID 19 is a contagious pathogen that can be spread on personal scrubs and foot ware that additionally acknowledges that inadequate attention has been given to this fact.
3. A second email from ED Manager Kelly Johnson and ED Director Eric Johnson to be immediately sent to all emergency department staff apologizing for their actions regarding the issue of hospital-provided scrub clothes. This email will specifically apologize for causing ED staff stress, loss of sleep, fear, and concern for their professional standing as well as acknowledging that COVID 19 is a contagious pathogen that can be spread on personal scrubs and foot ware.
4. All disciplinary actions relating to alleged violations of the uniform policy, dress code, or scrub code will be immediately and permanently stricken from my personal file and the files of all United Hospital employees.
5. All disciplinary actions relating to alleged violation of the use of personal electronic equipment will be immediately and permanently stricken from my personal file
6. Administrators and management of United Hospital will not misrepresent hospital policy and will end all efforts to intimidate, harass, threaten and otherwise weaken any hospital employee.
7. The title of hospital-wide Policy: Scrub Clothes Reference #: UTD-Admin-064, Section 3 will be changed to read “Uniforms Soiled With Blood or Other Potentially Infectious Materials Such But Not Limited To Viral Pathogens”
8. All hospital employees will be offered hospital provided scrubs without any form of harassment, at least for the full duration of the COVID 19 pandemic
9. All hospital employees will be offered disposable high guard boot covers (protecting foot ware and lower legs that are currently exposed with hospital gowns), and disposable surgical caps.
10. Because of the lack of preparation and continued disorder of hospital administration, which represents a potential threat to the health, welfare and safety of hospital employees, patients, and the public health, the Incident Command of United Hospital will be open to elected representatives of each hospital unit. These elected representatives will be given immediate access to all communications and decision making transpiring within Incident Command and will be authorized to share that information and decision making with all hospital employees working, caring for patients and hospital operations for the full duration of the COVID 19 crisis.
Thank you for your time. I hope that Allina can become more accountable in the future.
Cliff Willmeng, RN
Steward, MNA