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A Minnesota arbitrator that Allina Health must reinstate former nurse Cliff Willmeng, RN, but it does not have to issue him back pay.

The arbitrator also ruled that the system's United Hospital didn't fail to maintain a safe work environment by dictating nurses use their own scrubs early in the pandemic.

Willmeng was fired last May for wearing hospital-issued scrubs instead of his own. A state nursing board case against him was dropped recently, and he still has an active lawsuit against Allina.

The arbitration ruling stems from a union grievance raised by the Minnesota Nurses Association (MNA) against Allina for firing Willmeng without just cause, which claimed United's uniform code policy violated standard nursing practices.

The arbitrator, Stephen F. Befort, ruled Allina lacked grounds to terminate Willmeng, who was concerned that laundering his own scrubs at home jeopardized the health of himself, his family, and patients.

"Willmeng's good faith belief that the potential harm of exposure to COVID-19 necessitated a departure from the Dress Code policy warrants some remedy short of discharge," he wrote.

Befort concluded that Willmeng violated United policies during a heated confrontation with management on April 24, 2020 -- two weeks before he was fired -- and United took steps to warn Willmeng before firing him. Willmeng's "repeated refusal to follow the Dress Code policies was not an objectively reasonable response," Befort wrote.

In addition, United "reviewed the scientific evidence and the recommendations of the leading expert agencies in concluding that expanding the availability of hospital-issued scrubs was not a necessary step to protect its nurses against the pandemic," Befort wrote.

Willmeng and his lawyers are pleased with the reinstatement, but they disagree with the assertion that United didn't jeopardize employee safety and doesn't owe Willmeng the salary he would have earned since being terminated.

Allina declined to answer questions from MedPage Today, but in an emailed statement, it said it "is still in the process of reviewing the Arbitrator's decision in this case. However, we are gratified that he found that Allina Health acted appropriately and affirmed the safety measures implemented to protect our employees. We have no further comments at this time."

Amanda Cefalu, JD, Willmeng's lawyer, has been negotiating his return to work with an Allina lawyer since the arbitration decision, she said. But the arbitration decision did not specify by when Willmeng should be reinstated.

Chris Wachtler, JD, who represented Willmeng for the MNA, expects Allina to appeal the reinstatement ruling. Such appeals rarely succeed because they must meet a high standard, he said, but: "it's certainly their right to do so." He noted Allina has 90 days from the decision to appeal. If Allina indeed appeals, Wachtler expects the system to ask for a stay on Willmeng's reinstatement order.

Dominic Cecere, JD, the attorney who represented Allina in the case, did not return requests for comment.

is scheduled to be tried in October, Cefalu said, with a hearing scheduled for some time this summer. He sued for whistleblower retaliation and wrongful termination.

In the meantime, Willmeng said he is eager to return to work "as soon as possible," noting that he is fully vaccinated against COVID-19. He's set on going back to an Allina center despite their fight.

"To be sidelined during a pandemic like this, it's extremely hard," he said. "I want to get back to work in an ER and get back to work helping people."

Willmeng has not been able to secure another nursing job in the Twin Cities area, so his wife's teaching salary is still the only income supporting them and their two children. Legal bills are piling up and their children's needs for braces is going unmet, he said.

"It's been a year out of work for me and my family," he said. "So naturally I would hope to expedite the process. It certainly provides my family with prolonged anxiety. ... The entire process has been traumatizing."

After Allina fired Willmeng, he filed for the grievance and sued the system. The Minnesota nursing board then opened the disciplinary case against him late last year stemming from a confidential report, putting his license at stake.

The Board declined to answer why it dropped Willmeng's case, citing confidentiality issues. MedPage Today reported on the case in December, finding that the Board's lead investigator was Stephanie Cook, MSN, RN, who had worked as an Allina director for 24 years -- as recently as 2018.

The MNA declined to comment, with a spokesperson saying it is not authorized to do so.

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