Being Smart About Social Media

Abstract

By the time this article appears in print, we will not only be preparing for the “regular” flu season, we may also be encountering a second wave of the COVID 19 virus (and as I write this column there is an alarming resurgence of the first wave in certain parts of the country). For me, it is always reaffirming whenever health care and other front line workers are recognized on television news, in online and newspaper stories, blogs and social media for the amazing work they have done and continue to do. Yet at the same time I am frustrated, angry and worried about health care and front line workers fearing for their own and their patients’ safety due to insufficient testing, limited supplies of personal protective equipment (PPE), or staffing and equipment shortages. My emotions, and likely yours as well, swing from one extreme to another. It’s been an emotional few months. Early this spring as the true magnitude of the pandemic was being experienced daily by physicians, nurses, emergency medical technicians and others, the news media began to solicit the opinions of health care providers and other first responders while, concurrently, many health care workers began to (in near real time) post their daily experiences on personal social media outlets like Facebook, Twitter, and YouTube. Many needed to vent about being overwhelmed emotionally, to raise awareness about the lack of appropriate PPE, to inform the public about the risks of reusing PPE, or to share some of their own “new normal” such as routines they needed to adopt in order to keep their own families safe. I can only imagine how desperate and scared many of these professionals were in order to risk speaking publicly about those daily challenges. I suspect most of the social media posts were well intended, trying to raise the public’s awareness about the real severity of COVID-19 or to reinforce public health messages about sheltering in place and the need for social distancing and face masks. One thing that likely never crossed their minds was that such postings could be potential violations of their employers’ media, social media and privacy policies. I remember watching the network news one evening and saying to my husband, “Wow…I can’t believe all this social media activity hasn’t been more curbed by these health care employers.” Sure enough, later on in March, news stories began to appear about employers suspending or even terminating employees who were posting on social media. In the heat of the moment you may feel a need to speak out, but problems can arise whenever your own personal opinions negatively impact, for example, your employer’s reputation in the community. To prevent any one from losing their job for violating an organization’s media, social media, patient privacy and confidentiality policies, this month’s column is meant to serve as an important reminder on the potential conflicts between employees’ rights to use social media and employer rights to protect their reputations and other business interests. A Refresher for Staff By now, nurse leaders have already reminded their staff about the policies related to information sharing; e.g. contact with the media and the use of social media, and how doing so may violate a patient’s right to privacy. Hospitals tend to have long-standing policies prohibiting staff from speaking to news media, requiring that only a duly authorized representative of the organization ever communicates with the media on behalf of the organization. Likewise, the organization’s communications, marketing or public relations departments are typically responsible for the social media domain, which can include the monitoring of employee social media posts in order to assure organizational policies aren't being violated. For example, during the early stages of the pandemic, an emergency room nurse was suspended for violating HIPPA when he posted on Facebook that the COVID unit he was assigned on had nurses continuing to work even though they had fevers of their own. Another nurse’s employment was suspended for making public appeals for equipment on a private Facebook group and on her own public home page. Yet another nurse made a Facebook post about insufficient social distancing and safety precautions in her workplace actually being enforced as part of the employer’s Covid-19 protocols. It may seem counterintuitive for nurses to be disciplined simply for raising external awareness on a private Facebook page about coronavirus exposure at their employer. Then there are examples of nurses who have posted social media selfies where their employee identification badge is clearly visible—in effect, such postings not only reveal the identity of the employer, but could also result in the public erroneously perceiving that such that these nurses are speaking on behalf of their organization. Not a good idea. Perhaps not as evident to nurse leaders, let alone front-line staff members, is that any inappropriate use of social and electronic media may also be grounds for being reported to their individual state’s Board of Nursing (BON). While laws outlining the basis for any disciplinary action by a BON varies from state to state to state, a BON may investigate reports of inappropriate disclosures on social media sites by a nurse on the grounds of: unprofessional or unethical conduct, moral turpitude (defined as conduct considered as contrary to community standards of justice, honesty or good morals), mismanagement of patient records, divulging a privileged communication, and breach of confidentiality. The National Council for State Boards of Nursing publishes a social media guide for nurses. 1 Be Fully Informed Before Speaking Out A person’s social media activity is easily accessible to any member of the public these days, and with the integration of personal and professional networks across various media platforms, an employee’s posts have also become more accessible to an employer or to a fellow employee. Some nurses will continue to post on their personal social media accounts under a (potentially erroneous) assumption that their freedom of speech is always protected by the First Amendment. In actuality, while the First Amendment prohibits the government from abridging freedom of speech in most circumstances, it does not apply to private employers. Adding to such potential confusion within the health care world, in academic medical centers, where many of the practicing physicians and nurses are also on the faculty, some of them expect that the commitment to “academic freedom” comes with an unfettered right to freedom of speech and expression. But what must also be appreciated here is the difference between freedom of expression and freedom from the accountability for any type of expression that is disparaging, egregiously offensive, knowingly or maliciously false or hateful. Certain types of employee speech are indeed protected by law, but under the National Labor Relations Act (NLRA). Even this protection is balanced by the rights retained by an employer to establish guidelines and policies covering their employees’ social media usage. A quick summary on the law’s protections in this area: the NLRA protects employees who engage in what are called “concerted activities” which includes acting with co-workers or colleagues to address work related issues such as wages, benefits or other working conditions. This can also protect discussions an employee might have with the media or that same employee taking to social media to air any grievances about employer safety practices. Perhaps some examples of employer rules that likely would be permitted versus likely unlawful ones would also be helpful. An employer rule prohibiting the use of employer logos and the use of employer names in social media account handles or in URLs would likely be permitted, as would one that prohibited the disclosure of confidential business information, including any photos that might reflect that information. Likely unlawful rules would include a general prohibition on complaining about the employer or its working conditions, and prohibiting the disclosure of any and all employee information, including employee contact information or information about wages or employee pay. Summary and Conclusion Given that nursing is the most trusted profession, patient family members and the public are going to ask you for your opinions or for advice about COVID. Any response you provide needs to balance your obligations to your patient, your ethical and legal obligations to maintain patient privacy and confidentiality, and an expectation that you will generally support any positions staked out by your employer. As licensed professional registered nurses, we have obligations to speak the truth and advocate when asked by family members or the public about the need for social distancing and face masks. But since we also need to advocate for the best public health strategies that empirical evidence has shown decreases the spread of COVID 19, this is also the time to leave politics and any personal agendas or biases at the door.