Judge says he can’t force Health Department to give nurses protective gear

A New York judge has ruled in a nurses union lawsuit that he can’t force the state Department of Health to provide personal protective equipment to nurses or make the agency change its sick leave policy amid the coronavirus pandemic.

The New York State Nurses Association (NYSNA) filed an emergency lawsuit last month asking a judge to make the DOH enforce Gov. Andrew Cuomo’s directive to provide one N-95 mask per day to medical workers and make the agency bring its coronavirus sick leave policy in line with the state’s.

The state law allows for people with COVID-19 to receive two weeks’ paid sick leave, while the DOH issued a directive that nurses and other medical workers who test positive could return to work after only seven days, the lawsuit said.

But Manhattan Supreme Court Judge Frank Nervo determined the court couldn’t “substitute its judgement for that of an administrative agency, such as the respondent DOH.”

Even so, with regard to medical leave, the DOH “reached a determination on isolation and return to work guidelines for health care workers rationally,” Nervo’s Thursday decision reads.

The judge said that rather than sue the DOH, the union could sue “the individual hospitals and healthcare providers it alleges have violated the return to work directive or failed to provide PPE in accordance with applicable standards, guidance, and regulations.”

The NYSNA also filed suit against Montefiore Medical Center and Westchester Medical Center for failing to protect nurses’ health and safety during the coronavirus pandemic, including by not providing PPE and safe working conditions.

The NYSNA and the DOH did not immediately return a request for comment.

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