Via E-mail at Sweatt.Loren.E@dol.gov
August 24, 2020
Ms. Loren Sweatt
Acting Assistant Secretary for the Occupational Health and Safety Administration (OSHA)
United States Department of Labor
200 Constitution Ave NW
Washington, DC 20210
RE:

Health and Safety Complaint Against HCA Healthcare, Inc.

Dear Acting Secretary Sweatt:
The National Nurses United (“NNU” or “the Union”) represents over 150,000 Registered Nurses
(RNs) across the United States. The Union writes to alert you to gravely dangerous working
conditions at hospitals owned and operated by HCA Healthcare, Inc. (“HCA”), based in
Nashville, Tennessee. Based on reports from RNs at HCA facilities, the Union has become
aware of a constellation of HCA policies and practices that expose NNU members and other
frontline healthcare workers to COVID-19, placing them in imminent danger of death or serious
physical harm.
The Union represents RNs at numerous HCA hospitals, including the following facilities:
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Las Palmas Medical Center, 1801 N Oregon St, El Paso, TX 79902
Del Sol Medical Center, 10301 Gateway Blvd W, El Paso, TX 79925
Corpus Christi Medical Center, 3315 S Alameda St, Corpus Christi, TX 78411
Valley Regional Medical Center, 100 A E Alton Gloor Blvd, Brownsville, TX 78526
Menorah Medical Center, 5721 W 119th St, Overland Park, KS 66209
Research Medical Center, 2316 E Meyer Blvd, Kansas City, MO 64132
Oak Hill Hospital, 11375 Cortez Blvd, Brooksville, FL 34613
Medical Center of Trinity, 9330 FL-54, Trinity, FL 34655
Largo Medical Center, 201 14th St SW, Largo, FL 33770
St. Petersburg General Hospital, 6500 38th Ave N, St. Petersburg, FL 33710
Northside Hospital, 6000 49th St N, St. Petersburg, FL 33709
Blake Medical Center, 2020 59th St W, Bradenton, FL 34209
Doctors Hospital of Sarasota, 5731 Bee Ridge Rd, Sarasota, FL 34233
Fawcett Memorial Hospital, 21298 Olean Blvd, Port Charlotte, FL 33952
Osceola Regional Medical Center, 700 W Oak St, Kissimmee, FL 34741
Central Florida Regional Hospital, 1401 W Seminole Blvd, Sanford, FL 32771

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 2

Additionally, RNs at HCA’s Mission Hospital, located at 509 Biltmore Avenue in Asheville,
North Carolina, have successfully petitioned the National Labor Relations Board for an election
to join NNU.
It is well-established that individuals with COVID-19 who are pre-symptomatic or asymptomatic
may nonetheless be contagious. RNs at the above-referenced facilities have informed the Union
that HCA causes workers who are COVID-19 positive to continue working while asymptomatic,
thereby exposing their colleagues to the virus. Moreover, HCA fails to notify or test all
asymptomatic healthcare workers when they have been exposed to COVID-19 by their patients
or co-workers, effectively causing these workers who may also be COVID-19 positive to
continue working and exposing yet more essential healthcare workers to the dangerous novel
coronavirus. As a result, nurses and other frontline health care workers at HCA facilities are in
imminent danger of serious physical harm or even death.
The Union respectfully requests that the Occupational Health and Safety Administration (OSHA)
immediately inspect all HCA-owned-and-operated hospitals, including those mentioned above,
issue citations to HCA and its facilities for their willful violation of the General Duty Clause of
the Occupational Safety and Health (OSH) Act, require HCA to abate the hazard, and impose the
maximum penalties allowed by law. To the extent that “a danger exists which could reasonably
be expected to cause death or serious physical harm immediately or before the imminence of
such danger can be eliminated through the enforcement procedures” provided by the OSH Act,
the Union urges OSHA to seek a court order requiring HCA to abate the hazards enumerated in
this complaint pursuant to 29 U.S.C. Section 662(a) prior to issuing a formal citation.
Factual Background
Since approximately March 2020, the United States has been grappling with the impacts of an
unprecedented global pandemic. To date, in the United States alone, the novel COVID-19 virus
has infected millions of people and claimed the lives of over 150,000 others. Infectious disease
and other medical experts are still working to understand the characteristics and consequences of
this highly contagious and fatal new virus. There is no known cure, effective treatment, or
vaccine for COVID-19. The Union’s members and prospective members have been on the
frontlines of this pandemic, both in caring for patients and advocating for health and safety
protections in their workplaces. Tragically, over 100 U.S. nurses have died from COVID-19.
Many of those who do survive COVID-19 go on to experience serious, negative long-term health
consequences, including acute injuries to major organ systems. Such dire consequences are only
amplified by the concern that infected but asymptomatic or pre-symptomatic individuals pose
risks of exposure and infection to others in their proximity. Several studies have documented that

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 3

a significant proportion of cases are asymptomatic (never develop symptoms) or presymptomatic (positive in days before developing symptoms) and infectious.1
Health care workers come into close contact with one another in the workplace. RNs regularly
must share space and equipment like computers, cabinets, desks, phones, bathrooms, and nursing
stations. Moreover, RNs share breakrooms, where people generally have their masks off because
they are eating or drinking. Additionally, health care is a team practice, and RNs and other health
care workers work together in delivering patient care--it is virtually impossible to maintain
“social distancing” during certain protocols and procedures, such as patient lifts and baths. Some
routine patient care tasks can last for at least 15 to 45 minutes per activity, and require prolonged
contact between workers. There is a high likelihood that nurses may contract COVID-19, a
serious and lethal infectious disease, from asymptomatic co-workers.

1

Byambasuren, Oyungerel and Cardona, Magnolia and Bell, Katy and Clark, Justin and
McLaws, Mary-Louise and Glasziou, Paul, Estimating the Extent of True Asymptomatic
COVID-19 and Its Potential for Community Transmission: Systematic Review and MetaAnalysis (4/23/2020). Available at SSRN: https://ssrn.com/abstract=3586675.; Moriarty, Leah F.
et al. “Public Health Responses to COVID-19 Outbreaks on Cruise Ships — Worldwide,
February–March 2020.” MMWR, March 23, 2020,
https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm?s_cid=mm6912e3_w.; Kimball A,
Hatfield KM, Arons M, et al. 2020. “Asymptomatic and Presymptomatic SARS-CoV-2
Infections in Residents of a Long-Term Care Skilled Nursing Facility — King County,
Washington, March 2020.” MMWR Morb Mortal Wkly Report. 27 March 2020.
https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e1.htm?s_cid=mm6913e1_w ; Baggett TP,
Keyes H, Sporn N, Gaeta JM. Prevalence of SARS-CoV-2 Infection in Residents of a Large
Homeless Shelter in Boston. JAMA. Published online April 27, 2020.
doi:10.1001/jama.2020.6887.; Yun Noh J, Gu Yoon J, Seong H, et al. Asymptomatic infection
and atypical manifestations of COVID-19: Comparison of viral shedding duration. Journal of
Infection. May 25, 2020.; Hoehl, Sebastian, et al. (Feb 18, 2020), “Evidence of SARS-CoV-2
Infection in Returning Travelers from Wuhan, China.” NEJM, published online,
https://www.nejm.org/doi/full/10.1056/NEJMc2001899?query=RP.; Zou, Lirong et al. “SARSCoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients” NEJM, March 19,
2020, https://www.nejm.org/doi/full/10.1056/NEJMc2001737?query=TOC;S., Teruya, H., Mita,
N., Nakamori, T. and Kinoshita, H. (2020), Persistence of Positive SARS‐CoV‐2 RT‐PCR Test
Result for 24 Days in a Hospitalized Asymptomatic Carrier. Acute Med Surg. Accepted Author
Manuscript. doi:10.1002/ams2.525;
Rothe C, Schunk M, Sothmann P, et al. (Jan 30, 2020), “Transmission of 2019-nCoV Infection
from an Asymptomatic Contact in Germany.” NEJM, published
online,https://www.nejm.org/doi/full/10.1056/NEJMc2001468?query=featured_home.; Li C, Ji
F, Wang L, et al. 2020. “Asymptomatic and Human-to-Human Transmission of SARS-CoV-2 in
a 2-Family Cluster, Xuzhou, China.” [published online ahead of print, 2020 Mar 31]. Emerging
Infectious Diseases. doi:10.3201/eid2607.200718.

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 4

HCA Healthcare, Inc. maintains uniform policies and practices across its facilities, including
those that cause asymptomatic COVID-19 positive employees to expose their colleagues to the
virus. As of at least July 20, 2020, HCA has maintained and disseminated a written policy
causing asymptomatic employees to continue working despite confirmed exposure to COVID19. (See Exhibit 1 attached to the Declaration of Brian Walsh (hereinafter “Walsh Decl.”),
entitled “Employee Exposure and Return to Work Guidance During COVID-19 Response”
(hereinafter “return-to-work policy”).) HCA does not test employees for COVID-19 unless they
exhibit symptoms. (See, e.g., Walsh Decl.; Declaration of
(hereinafter
Decl.”); Declaration of
(hereinafter “
Decl.”)). The return-to-work
policy permits employees who have in fact tested positive for COVID-19 to return to work after
the quarantine period without first testing negative for the virus, so long as they are
asymptomatic. Id. Previously, facilities in the HCA system required workers to have two
negative tests prior to returning to work. (See
Decl.). Astonishingly, one HCA
Employee Health staff member at Fawcett Memorial Hospital in Port Charlotte, Florida admitted
that “we know nurses will be positive, so we’re not testing them.” (See
Decl.).
HCA’s efforts to notify workers of exposure are inconsistent, at best, and negligent, at worst.
Several nurses attested to the fact that HCA and its facilities routinely fail to notify workers of
exposure until they report experiencing symptoms. As a result, HCA is effectively causing an
unknown number of workers who have COVID-19 to continue working while contagious,
unwittingly spreading the coronavirus to their colleagues and patients. Even when nurses become
aware of an exposure to COVID-19 either via informal contact tracing or, in rare cases, through
HCA staff, HCA refuses to test asymptomatic employees for COVID-19, further compounding
the problem of COVID-19 spread by asymptomatic employees in its workplaces.
The Union has incorporated illustrative, but not exhaustive, examples of these practices and their
consequences in the declarations attached to this complaint. In one example, RN Doe, a Staff
Nurse at Osceola Regional Medical Center in Kissimmee, Florida, became ill with COVID-19
after prolonged contact with a nursing assistant who was later confirmed COVID-19 positive.
Through word of mouth, RN Doe learned that her nursing assistant, who she worked with closely
and frequently in the preceding weeks, had tested positive for COVID-19. Ms. Doe confirmed
this with the nursing assistant herself. At no point did the Employer notify RN Doe of her
exposure to COVID-19 through her nursing assistant. On or about June 12, 2020, RN Doe began
exhibiting symptoms of COVID-19—namely, digestive issues and loss of the senses of smell and
taste. The employer denied her request for a COVID-19 test on the grounds that she was not
exhibiting fever, shortness of breath, or cough. On or around June 21, RN Doe was forced to
seek out a test at a public testing site on her own. Despite knowing about RN Doe’s symptoms,
her manager continued to put her on the schedule. On or around June 23, Ms. Doe received her
test result—she was positive for COVID-19. At that point, she was instructed to quarantine by
her employer. After 14 days of quarantine, the Employer’s Employee Health department
instructed her to come back to work if she was asymptomatic, irrespective of whether she was
still COVID-19 positive. RN Doe sought out another COVID-19 test on her own, and once again
tested positive. Her doctor extended her sick leave, and indeed, she is still very ill. (See
Declaration of Matthew Emmick (hereinafter “Emmick Decl.”)).

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 5

HCA causes nurses with known COVID-19 exposures to continue working and living with
uncertainty and fear that they may be unwitting vectors. As an example, at Mission Hospital in
Asheville, North Carolina, several nurses performed aerosolizing procedures without appropriate
personal protective equipment (N95 masks) on a respiratory failure patient confirmed to be
COVID-19 positive shortly thereafter. HCA and Mission Hospital have failed to test—or in many
cases, even notify—all nurses who were exposed to COVID-19 through this patient. (Declaration
of
(hereinafter, “
Decl.”)). In another instance at Mission Hospital,
several nurses in the Neurology Unit worked closely with a technician who was confirmed to be
COVID-19 positive during one of their shifts together. HCA and Mission Hospital failed to notify
these nurses of their exposure despite their prolonged contact with the COVID-19 positive coworker. When one of them proactively notified Employee Health that she had been exposed
through her colleague and sought out testing, her request was denied. (See Declaration of
(hereinafter “
Decl.”)).
At present, HCA’s policies and practices pose an imminent danger to its employees, including
NNU members, across all its facilities, including those identified above.
Legal Analysis
OSHA has not issued a standard to address the coronavirus pandemic. Where there is no standard
for a hazard, Section 5(a)(1) of the Occupational Safety and Health Act (the "General Duty
Clause") governs. The General Duty Clause requires an employer to furnish to its employees
"employment and a place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm to his employees..." Section 5(a)(1)
of the OSH Act, 29 U.S.C. § 654(a)(1).
Employers can be cited for violation of the General Duty Clause if a recognized serious
hazard exists in their workplaces and the employers do not take reasonable steps to prevent
or abate the hazard. The following elements are necessary to prove a violation of the
General Duty Clause:
a.
b.
c.
d.

The employer failed to keep the workplace free of a hazard to which
employees of that employer were exposed;
The hazard was recognized;
The hazard was causing or was likely to cause death or serious physical
harm; and
There was a feasible and useful method to correct the hazard.

OSHA, Interpretation Letter Dated December 18, 2003, available at https://www.osha.gov/lawsregs/standardinterpretations/2003-12-18-1 (last accessed 7/29/2020); National Realty &
Construction Co v. OSHA, 489 F2d 1257, (D.C. Cir. 1973).

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 6

Each of these elements is present here. HCA has not just failed to keep the workplace free of the
hazard of COVID-19, but, in fact, it has exacerbated the spread of the illness in its facilities.
HCA facilitates the spread of COVID-19 by causing workers who are or may be COVID-19
positive to continue working while asymptomatic, thereby exposing their colleagues to the virus.
It does so through its policies and practices of, inter alia, not notifying employees of exposure to
COVID-19, failing to test employees for COVID-19 following confirmed exposure if employees
are asymptomatic, and returning employees to work following a confirmed case of COVID-19
without first requiring asymptomatic employees to test negative for COVID-19.
HCA could feasibly correct this hazard by providing thorough contact tracing and prompt notice
of exposure to employees, and COVID-19 testing for all employees—symptomatic or not—with
known exposures to the virus, and reverting to its prior policy of requiring two negative COVID19 test results before an employee with a confirmed case of COVID-19 can return to work. HCA
cannot raise any infeasibility defense as to these abatement measures, where it already employs
numerous Employee Health staff members throughout its facilities who could perform adequate
contact tracing and notify employees of exposure. Moreover, there is an increasing variety and
supply of COVID-19 testing options available to a large, highly profitable healthcare corporation
like HCA at this juncture.
As a healthcare employer, HCA is aware of asymptomatic spread of COVID-19 and its
potentially dire consequences, including death. Accordingly, its actions constitute “intentional,
knowing or voluntary disregard for the requirements of the OSH Act or plain indifference to
worker safety,” a “willful violation” warranting significant civil penalties. See, e.g., 29
U.S.C.§666(a).
Conclusion
The Union reiterates its request that OSHA immediately inspect all HCA facilities, including
those enumerated in this complaint, issue citations, require HCA to abate the hazards, and
impose maximum penalties for willful violations of the OSH Act. To the extent that “a danger
exists which could reasonably be expected to cause death or serious physical harm immediately
or before the imminence of such danger can be eliminated through the enforcement procedures”
provided by the OSH Act, the Union urges OSHA to seek injunctive relief against HCA pursuant
to 29 U.S.C. Section 662(a) prior to issuing a formal citation. The undersigned can be reached by
mail at National Nurses United, 1406 N. 19th Street, Tampa FL 33605; by telephone at (240)
460-0352; and by email at BVanWaus@NationalNursesUnited.Org.
Sincerely,
/s/ Bradley Van Waus

.

Bradley Van Waus
Director, HCA and Southern Divisions
National Nurses United

 Ms. Loren Sweatt
Health and Safety Complaint Against HCA Healthcare, Inc.
August 24, 2020
Page 7

cc (via E-mail Filing):
OSHA Region 4 Regional Office (Atlanta) (stawowy.therese@dol.gov)
OSHA Region 4 Tampa Area Office (OSHATampa@dol.gov; Tampa.OSHA@dol.gov)
OSHA Region 6 El Paso Area Office (OSHAElPaso@dol.gov; Alvarado.Diego@dol.gov)
OSHA Region 6 Corpus Christi Area Office (OSHACorpusChristi@dol.gov)
OSHA Region 7 Kansas City Area Office (OSHAKansasCity@dol.gov)
OSHA Region 7 Wichita Area Office (Complaints.F135@dol.gov)
Tennessee OSHA State Plan (TOSHA), Tennessee Dept. of Labor and Workforce Development
Wendylee Fisher, TOSHA Administrator (Wendy.Fisher@tn.gov)
North Carolina Occupational Safety and Health (NC OSH), N.C. Department of Labor
Cherie Berry, Commissioner of Labor (cherie.berry@labor.nc.gov)
Attachments