When considering those on the front lines of the coronavirus pandemic response, most people likely envision doctors and nurses. However, there is an often forgotten, front-line workforce comprised of orderlies, nursing facility workers, and nursing assistants (“NAs”) that earns very little money, has few protections, and is largely Black and Brown and female. Many individuals in this group are also subject to a unique form of discrimination: rejection on the basis of their race or ethnicity by some of the very patients they are assigned to aid.
The millions of people who make up this group of essential workers constitute a substantial portion of the health care workforce and earn an average of $13.48 per hour despite the risks they take. Their work, which involves bathing, dressing, and feeding patients; brushing their teeth, and assisting with their use of the toilet, puts these workers at high risk of contracting COVID-19. Nevertheless, early in the pandemic, many of these workers lacked or had inadequate personal protective gear due to the tiered system used for distributing this equipment. Doctors and nurses were first in line for smocks, masks, and other essential gear; last were members of this underappreciated group of front-line health care workers.
According to the CDC, as of September 8, 2020, more than 156,562 health care workers have contracted the novel coronavirus, and more than 694 have died. These numbers are rising every day. The CDC also reports that a majority of health care workers who contracted the virus believe that they were exposed through their work. Still, these undervalued front-liners are often compelled to use their sick leave or vacation time when they become ill, and very few receive hazard pay. This is so even though virtually every hospital in the country received millions of dollars from the CARES Act, which is the coronavirus relief package passed by Congress in March 2020. In fact, some people in this underappreciated workforce have relied upon GoFundMe campaigns to raise money for a hotel room or an Airbnb in which to self-isolate as a means of protecting their families from the virus that they are exposed to at work.
In addition to these COVID-19-related risks, this group of largely Black and Brown workers also faces a particular type of discrimination that is difficult to address, and which occupies a legal gray area. This discrimination occurs when patients reject their assigned health care worker based on the worker’s race or ethnicity.
While this fairly common, but until recently, little-discussed phenomenon affects doctors and other health care providers, it has a disproportionate impact on those on the front lines of patient care. Think of the scenario where the patient declares, “I don’t want that Chinese nurse’s aide in my room. Get me a white American one!” Indeed, patients in the age of COVID-19 are increasingly announcing that they don’t want to be treated by health care workers who present as East Asian due to racial bias and unfounded fears that they are more likely to carry the coronavirus.
These prejudices and stigma have been stoked by President Donald J. Trump, who has called the virus the “Kung Flu” and the “China Plague.” And this type of patient discrimination is familiar to other, particularly Black, front-line health care workers of color, who have long been the target of patient prejudice.
When this patient discrimination occurs in an emergency department, hospitals are often at a loss for how to respond because this phenomenon implicates several, often conflicting laws. For example, patients have a right to informed consent, which includes the right to refuse wanted treatment from an unwanted health care worker. Individuals also have a right to receive a medical screening and stabilizing treatment in accordance with the Emergency Medical Treatment and Active Labor Act (EMTALA) when they arrive in an emergency department.
Health care workers, however, have employment rights that must be respected. This includes the right to a workplace free from certain types of discrimination, including discrimination on the basis of race and ethnicity. Therefore, if a health care institution continually reassigns workers without their consent in response to a patient’s discriminatory demands, then it may be found to have created a hostile work environment in violation of Title VII of the 1964 Civil Rights Act.
These seemingly incompatible rights and obligations can create problems for a health care institution. If it accommodates the patient’s wish for an NA of a different race or ethnicity, it may be discriminating against the assigned NA and opening itself up to legal liability. But if it doesn’t accommodate the patient’s demands it may violate laws against battery by forcing the patient to be treated by an unwanted NA without consent. But if it doesn’t screen and stabilize the patient, it could be liable for violating EMTALA.
The U.S. has a very patient-centered culture of care, which is important, but we should not forget our front-line health care workers. Ethical guidelines can suggest ways to deal with these difficult patient encounters. Any long-term solution, however, must involve the health care industry acknowledging the vulnerability of these workers and recognizing explicitly that both health and health care are undermined by the racism and structural inequality that cause these workers to be underpaid and undervalued despite being deemed “essential.”
Kimani Paul-Emile is a Professor of Law; Associate Director and Head of Domestic Programs and Initiatives at Fordham Law School’s Center on Race, Law & Justice; and faculty co-director of the Fordham Law School Stein Center for Law & Ethics.