Nurse Legal Rights in the Workplace

by Jebra Turner | Oct 29, 2018 | Magazine, Nursing Careers | 0 comments

Most registered nurses are familiar with the rights of patients under their care and work hard to alleviate suffering and maintain respect for human dignity. They advocate on behalf of patients, their families, the community, and society as a whole. But many nurses do not know their own legal rights and responsibilities as health care professionals.

Nurses with knowledge of whistle-blower laws, for instance, may be more likely to press administrators to end patient-care abuses or fiscal fraud. Standing up for what’s right is tough in any case, but especially for women and minorities, who make up a majority of the profession. Yet, minority nurses have historically demonstrated heroic activism for community health and social justice, during the civil rights era and the AIDS epidemic, for instance.

Nurses face the same legal issues as many other employees, such as sexual harassment in the workplace. But they also must protect against career-specific liabilities, such as

“There are three major concerns for nurses,” according to Gerard Brogan, RN, lead nursing practice representative at California Nurses Association and National Nurses United. “I travel and talk to nurses across the country and union or not, I hear the same things. The first concern is nurse-to-patient ratio, two is violence in workplace, and three is scope of practice.”

This article, then, will focus on legal issues that are unique to nurses.

Nurse-Patient Ratios

Nurses across the country have expressed overwhelming concerns regarding these roadblocks to patient care and safety: short staffing on overcrowded units, limited ability to take even short breaks due to scheduling gaps, floating nurses without the proper training for certain departments, and so on.

According to Brogan, California is the only state in the country that has nurse-to-patient ratios. “Massachusetts and Arizona have them for the ICU only,” he says. “Nurses are working in understaffed hospitals, which are dangerous for patients and everyone else. We now have two nurse-to-patient bills in Washington. One is a house bill and one is a senate bill. They would require every hospital to adhere to ratios similar to the California bill.”

Brogan says that he often sees on social media the phrase “nurses should not be political.” But he believes that’s a naïve and possibly dangerous position. “Health care employers are heavily involved in politics, so as an organization and profession we have to also be involved in politics ourselves.”

Other aspects of staffing include how hospital plans are created and implemented allowing direct-care nurses to play a role. “The Oregon Hospital Nurse Staffing Law gives power to the hospital staffing committee,” says David Baca, RN, BSN, an emergency room nurse at Asante Rogue Regional Medical Center in Medford, Oregon.

The law is also a legal measure regarding rest-breaks and specialized staffing on specific units and departments. “The phrase ‘A nurse is a nurse is a nurse is a nurse’ is common, but that kind of thought process needs to go away as it becomes clear that appropriate education and training are needed,” says Baca.

The nurses at his hospital also recently won a new contractual right: break-relief nurses on units, when necessary, to allow nurses to schedule earned breaks and meals. Baca estimates that only 30-40% of nurses at his hospital know about the new staffing laws. “A little more education is needed,” including the hospital and individual nurse’s unit. “Standards and practices in the ER should be something we’re aware of. If not, we should be asking: ‘What does the ENA say about staffing and nurse patient ratios?’”

Workplace Violence

“When it comes to workplace violence, nurses have been in the top five forever,” says Baca. According to an U.S. Bureau of Labor Statistics analysis, 52% of all incidents of workplace violence in 2014 involved workers in the health care and social service industry. “The ER is open to everybody. We serve everyone, including the intoxicated or those with mental issues, so nurses are assaulted. It happens on almost a daily basis.”

“A few years ago, we had a huge problem with psychiatric crisis patients. We couldn’t secure them in appropriate rooms for their own safety and ours. They’d either elope or assault. That’s a huge risk, so the hospital invested a million dollars into ER security for the safety of everybody,” says Baca.

“Most assaults in the ER go unreported. If you regularly see colleagues assaulted, it becomes the norm,” warns Baca. “Maybe we need to prosecute more patients who assault nurses, medics on ambulances, or technicians. There’s a very low prosecution rate and almost no legal ramifications for patients who assault. We need to change the workplace culture that accepts violence.”

In 2014, California enacted a trailblazing law to reduce workplace violence incidents in health care facilities. “Every hospital has to develop a comprehensive workplace violence program to protect the safety of patients and employees,” Brogan explains. “We’re not just interested in working on the welfare of nurses in California or nurses in the union. Our efforts are for nurses across the nation.”

Then there’s the more common, less intense form of violence: bullying…

Brittney Wilson, BSN, RN, a social media influencer also known as The Nerdy Nurse, started blogging as a response to the stress of nurse-on-nurse bullying as a newly graduated floor nurse.

“What I learned from my experience with lateral violence is that in a right-to-work state it is very difficult to make a stand for yourself,” Wilson explains. “I did learn that in order to build a strong case for yourself you should keep notes including dates/times/names of incidences. You should also report incidences as soon as they occur. But if your hospital does not have a union, it is pretty much your word against another employee.”

In Wilson’s case, the nurses who witnessed the bullying weren’t her allies, and neither was management. “My employer didn’t support me and believe me enough to address the work environment, pursuing the issue just made things more difficult for me and lead to me being forced to take a different position and a pay cut until I ultimately left the organization,” she adds.

Though nurses have a right to be treated with dignity, respect, and civility, they sometimes must fight just for an environment that isn’t downright hostile. Wilson advises nurses in that situation to “find new employment and an organization that will support and value them. We are living in an economy where there are more jobs than there are nurses. If you aren’t being treated respectfully, you owe it to yourself to remove yourself from a damaging situation.” That’s just what Wilson did, parlaying her newly accrued digital skills into a well-paying and satisfying career in nurse informatics and technology product development.

It goes without saying, but nurses must themselves also avoid those types of uncivil, hostile, bullying, or intimidating behaviors that show disrespect for patients or colleagues. Otherwise, they put themselves at risk of censure for trampling the rights of others.

Scope of Practice

“There are fifty states and 50 different nurse practice acts,” says Brogan. “Hospitals don’t really educate employees on the legal scope of practice. I’ve been educating nurses for 20 years and find that hospitals see nurses as a unit of labor, not as a professional.”

In today’s fiscally-focused health care landscape, there is always a concern that the scope of professional nursing practice is at risk from understaffing, de-skilling, and other encroachment, warns Brogan.

“The hospital industry is trying to expand the scope of nurse’s aides and medical assistants. Nurses are professionals with independent judgment,” he says. “If they are given too many patients to care for, as is often the case in non-unionized hospitals, they have to take them or they can be fired.”

All nurses need to remain current, competent, and within their scope of practice, or risk losing their license—and their career. Protect yourself by taking continuing education courses in nursing (online or in-class) or enrolling in an advanced degree program. If further formal education is problematic, you can learn informally through a professional nursing association, either for your particular minority group or one in your specific area of
practice.

Rachel Seidelman, RN, a direct care nurse at Providence Health & Services in Portland, Oregon, has been a nurse for eight years and continually updates her understanding of the law. She knows her state nurse practice act rules and reviews them regularly to ensure she protects her practice and her license. “The biggest thing that’s helped guide me comes through my union; there’s a branch for practice. I know state and federal law and the overlap. I make sure I know who I can delegate to, because it’s all on me if a colleague messes up under my umbrella.”

“How I was precepted really helped me as a young nurse without much work experience,” Seidelman says. “Part of the onboarding process is to ensure they understand the wage scale, the contract and their rights within it, and a lot of other things, too. I’m a preceptor now and will never stop because I learn so much from doing it.”

One example of how Seidelman expands her knowledge of issues related to nursing practice concerns the opioid epidemic. After reading a series about it in the state’s major newspaper, she wondered what her response should be as an off-duty nurse encountering a stranger overdosing. Should she carry the opioid antidote naloxone as a precaution? “That question led me to the Oregon Nurses Association, my employer, and discussions with pharmacists and mentors.” She couldn’t obtain the antidote without a prescription, but new laws enacted in 47 states make it more freely available. The surgeon general recently urged opioid users, concerned family members, and professionals to keep it on hand.

“In this day and age, it’s important to protect our own license and also protect our patients and colleagues. I advise fellow nurses to ask good questions, be curious, find answers, and then tell others,” says Seidelman.

Advocating for Your Patients, Community, and Profession

Nurses have long participated in the political process and sought to shape health care legislation that supports nurses as well as benefiting patients and communities.

Martese Chism, RN, a Chicago nurse, is inspired by the example of her great-grandmother, Birdia Keglar, a civil rights activist in the 1960s. “She marched in Selma with Rev. Martin Luther King Jr. and lost her life because of it. Dr. King, in his speech, said he would like to have a long life, but that wish didn’t stop him from protesting,” she says.

Chism explains that her first college degree was in accounting, but she discovered “my calling is advocating for patients,” so she went back to school to become a nurse. “We’re supposed to advocate for our patients… I believe my fiduciary duty is to my patients, not the hospital. I advocate for my patients, but in the back of my mind, I worried about job security. I was single and didn’t have a family to support, but if I had, I wouldn’t have been so vocal without my union,” she explains.

One matter that Chism has spoken out about is the closure of public hospitals and other health care facilities in minority communities. “When elderly patients with no insurance need skilled nursing care our hands are tied [because of the closures] so now our uninsured patients have nowhere to go,” she says.

Some of Chism’s patients were retired public employees who aren’t eligible for Medicaid or Medicare. “They’re now turning 70 or 80 and they have no insurance. That’s why I’m fighting for Medicare for all,” she says. “As nurses, we’re supposed to advocate for our patients, but I don’t feel like I can without union protection. If I do, I’m branded a troublemaker. I’ve been speaking out in public for a long time and I could never get a promotion. If it wasn’t for the support of my patients, and union, I wouldn’t have lasted this long on the job.”

According to The Code of Ethics for Nurses (2001), nurses do have the right to advocate for themselves and their patients, and to do so without fear of retribution. Each state’s nurse practice act varies, but Chism was outraged when Illinois tried to remove “advocacy” from its nurse act. “They tried to say that your duty is to your employer, but our union fought to stop that. We don’t know about the future, though, especially with the recent [Supreme Court] Janus decision. The union movement might be weakened even more.”

Finding an Attorney to Explain Your Rights or Represent You

Even though you do your best to learn the laws related to nursing, you can’t always avert legal trouble. There may be a claim of professional negligence, say, and then you’d need to retain a qualified attorney in your area to defend you.

“Generally, look for an employment lawyer, they will understand the federal and local laws on wages, overtime, discrimination,” says Jeffrey M. Edelson, JD, attorney at Markowitz Herbold in Portland, Oregon. “They’re often divided by union and non-union. The tradeoff with collective bargaining is that an agreement could be in conflict with state law.”

If facing disciplinary action with the nurse licensing board, you may require an attorney who specializes in licensure protection.

Or your case may call for an attorney with experience in an entirely different area of practice. “For example, in the case of the Utah nurse [Alex Wubbels refused to draw blood from an unconscious patient], you’d need a criminal lawyer,” he explains. Or, if you work at a state hospital and are fired for expressing an opinion or acting on a matter of conscious, “you may need a constitutional lawyer in that you may have additional first amendment rights, versus if you’d worked at a private clinic,” Edelson adds.

A common way to find an employment lawyer is to checking profiles in listings such as “Best Lawyers in American,” he suggests. Or use your personal network of nurse colleagues, friends, or family to find an attorney. “Call your family lawyer, the one who does wills, and ask ‘do you know an employment lawyer?’” You’ll likely be referred to an appropriate attorney. Plus, “you’ll get that lawyer’s ear because you’ve been referred,” says Edelson, and they’ll each want to protect their professional relationship. Ask about their experience with your type of legal trouble or concern. Then inquire about fee structure. Some will charge for an initial consultation, while others won’t, and most work on a retainer basis, though some will take a case on a contingency basis.

Other resources for finding local attorneys: your professional nursing organization or union, the American Association of Nurse Attorneys (TAANA), and the State Bar Association.

In addition, you may want to purchase malpractice insurance (including license defense coverage) in advance of any need. Some professional nursing associations even offer a discounted rate, making it a prudent and affordable option.