New York nurses are suing the state after being asked to work 7 days after being diagnosed with COVID-19, flouting public health recommendations

• The New York State Nurses Association filed a lawsuit against the New York State Department of Health over its coronavirus health policies and its failure to protect nurses.
• An NYSDH protocol allows healthcare providers to require workers with confirmed or suspected COVID-19 to return to work only seven days after experiencing symptoms.
• The medical worker can be forced to go back to treating patients so long as the employee has not had a fever for at least 72 hours and the employee's other symptoms are improving.
• NYSNA claimed that the protocol goes against broad scientific evidence that the incubation period for the virus can be up to 14 days, meaning that sick nurses forced to work could be infecting their patients and coworkers.
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While nurse practitioner Pamela Brown-Richardson was treating patients with COVID-19 symptoms, she said her hospital refused to give her personal protective equipment, even as N95 respirator masks sat locked in a closet at the clinic.

Despite testing positive for COVID-19, Richardson said Montefiore Medical Center informed her that she would be required to work just seven days after her illness as long as she was not "feverish."

Richardson initially refused to work, fearing that she would be putting her coworkers and patients at risk — until she was forced to return to Montefiore Medical on April 2 still feeling ill. That same day, she was sent to the emergency room due to complications with COVID-19.

"I believe that I contracted COVID-19 due to my exposure at work and the lack of PPE," Richardson wrote in an affidavit.

Richardson is hardly alone — as medical workers at the epicenter of the US outbreak continue to battle COVID-19, many have claimed that the New York State Department of Health (NYSDH) has failed to adequately protect its frontline medical workers by failing to provide PPE and give them adequate time to recover after contracting the virus.

For this reason, Richardson and other nurses have joined a lawsuit filed by the New York State Nurses Association (NYSNA) against the NYSDH over its coronavirus health policies and failing to provide PPE, allowing "hospitals to become Petri dishes where the virus can fester and then spread to other health care workers, the patients, and the general population."

"[NYSDH's] neglect of its statutory duties and disregard for the laws of this state have exacerbated rather than mitigated the ongoing crisis," the lawsuit read.

NYSNA also added that requiring health care workers to come back to work before they are fully recovered "dangerously heightens the risk of exposure" to their co-workers, patients, and their larger community.

All across the nation, medical workers have made clamorous calls for more PPE — the only protection they have against the highly contagious virus while treating patients with COVID-19. Although Cuomo recently stated in a March 28 news briefing that New York City officials informed him that they had finally received adequate PPE, nurses on the frontlines of the battle against the virus say otherwise.

In a survey of nurses who are members of NYSNA, 72% reported they had been exposed to COVID-19 at work, and 11%, or 9,514 NYSNA registered nurses, have tested positive for the virus. At least 84 have been hospitalized and eight members died after contracting COVID-19 — however, these numbers only include nurses who are members of the union, meaning that many more likely remain unaccounted for.

NYSDH would not comment on the specific claims made by NYSNA nurses due to "pending litigation."

However, Jonah Bruno, NYSDH's director of communications said the state "continues to take every step necessary to ensure that health care workers, particularly those who are sampling and providing direct care, have the support and supplies needed to address this unprecedented public health emergency."

Several NYSNA nurses reported that their hospitals directed nurses with COVID-19 to return to work before they had recovered

Richardson began treating patients with COVID-19 symptoms on March 8 — but due to shortages of PPE, her hospital refused to give her any PPE besides surgical masks if a patient was coughing, according to the lawsuit.

Despite her repeated requests, she said, the director of their clinic refused to give her and another nurse practitioner personal protective equipment (PPE), claiming that N95 face masks were reserved for those treating patients "suspected" or known to be positive for COVID-19.

"Despite daily requests for PPE, I was not provided with any. We were instructed that we could only wear a surgical mask, which is not adequate protection against COVID-19, if the patient presented with a cough," Richardson wrote in a complaint. "Otherwise we were prohibited from wearing surgical masks because management believed that doing so could alarm patients.

By March 16, Richardson began coughing and running a fever. She was forced to get find a COVID-19 test on her own because her hospital claimed her exposure was not "significant," her affidavit said. Several days later tests confirmed she had contracted the virus and on March 21 she began staying home to recover.

According to Richardson, Montefiore Medical Center insisted that she had to return to work if she was not feverish on March 28 — just seven days after she went home with a cough, a fever, and shortness of breath.

In her affidavit, Richardson noted she was at a higher risk of complications with COVID-19 due to her asthma. Still, she returned to work on April 2 only to land in the emergency room at her local hospital when her conditioned worsened. After a CT scan, Richardson was diagnosed with double-lobe pneumonia caused by COVID-19.

That test offered proof of her illness and gave Richardson the ability to insist that she could not work until she recovered. However, she claimed that Montefiore Medical only give her three COVID-19 sick days. Richardson had to use her own bank of sick days for the time she has taken to recover from COVID-19.

NYSDH protocol allows healthcare providers to require sick medical workers to come back to work seven days after the onset of experiencing symptoms

The NYSDH provided guidance to healthcare providers on protocols for medical personnel who have been exposed or infected by the virus.

If a medical worker is confirmed or suspected of COVID-19, the NYSDH protocol states that personnel can be asked to come back to work if they have isolated for seven days after their symptoms first appeared.

A hospital can ask an employee to go back to treating patients so long as the employee has not had a fever for at least 72 hours without fever-reducing medication and the employee's other symptoms are improving, according to the most recent guidance from NYSDH document on the protocol.

While the time period reflects CDC guidelines for people with COVID-19 ending home isolation more broadly, healthcare workers are directly treating populations at risk of falling seriously ill from the disease.

The NYSNA also noted that the policy requiring medical workers to return to treating patients reflects an "apparent disregard for the possibility of asymptomatic transmission."

"While members of the general public are directed to self-quarantine for fourteen days...following the DOH's directive, [healthcare providers] are requiring health care workers to return to work after seven days, even when they are still symptomatic," NYSNA claimed in the lawsuit.

"This inevitably has serious health and safety consequences for the sick RNs, their patients, and their coworkers who could be exposed," the NYSNA added.

The NYSDH requires sick nurses returning to work after having been confirmed or suspected of contracting the virus to wear a face mask for 14 days following the onset of their symptoms. But the protocol does not specify what kind of face masks sick medical workers should wear or include any other requirements for PPE to use while continuing to treat patients.

The nurses' union also alleged in the lawsuit that the NYSDH acknowledges that employees may still be infectious. One NYSNA nurse claimed that she was asked to work while running a fever topping 103 degrees. The NYSDH protocol also required that medical personnel confirmed or suspected of having the virus to "quarantine themselves when not at work."

The NYSNA demanded this directive be rescinded immediately, claiming that the protocol not only contributed to the spread of COVID-19, but that it violates New York's coronavirus paid sick leave law which requires at least 14 days of paid sick leave for public employees.

"[NYSDH's] determination and protocols providing that nurses and other healthcare professionals are fit for duty after just 7 days of recovery, despite scientific evidence and explicit state law to the contrary, is arbitrary and capricious and affected by an error of law," the lawsuit read.

It continued: "This has caused serious illness and death for nurses and other frontline health care workers and created a state-wide public nuisance contributing to, rather than combatting, the spread of COVID-19 throughout New York State and beyond."