Nurse Legal Rights in the Workplace

Nurse Legal Rights in the Workplace

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

being accused of violating the nurse practice act or similar regulations.

“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

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.

One Nurse’s Case for Safer Nurse-Patient Ratios

One Nurse’s Case for Safer Nurse-Patient Ratios

Walking into the nursing home at the Coatesville VA Medical Center, the sun was coming out from behind soft, white clouds. A large flock of Canadian geese rested on the dew-covered grounds near the nursing home.

Joe, the night nurse, had nothing new on morning report as both shifts exchanged information about the residents. No new illnesses, no high temperatures, or behavior changes.

Lights flashed at the nurses’ station—call bells, veterans waiting for someone to answer their request for help. I talked to several veterans to see what their needs were and walked into their rooms as they ate breakfast.

It is Mother’s Day Weekend, 2010, and there is not enough nursing staff on duty to assist and meet the needs of this busy dementia unit. Speaking to Mary, the RN in charge, she called our coordinator. He stated that there was no extra help or staff, and overtime money was not to be used per administration.

Pouring the medication for Team Two’s cart, I felt hurried and pressured by other staff needing assistance with dressing and serving residents their breakfast. Many trays were still left, as night shift could not get all their work completed due to their staff shortage.

My career and profession changed forever on May 9, 2010, when another LPN requested my assistance to transfer an obese veteran to his geri chair via a Hoyer Lift. I pushed him on the Hoyer Lift, but he was too heavy for us to transfer, and everyone else was busy or not around the floor.

By afternoon, Mary had added my name to the report form. She filled out an injury form and asked if I wanted to go to employee health. With pain going from my buttocks down my right leg, I thought rest would solve the problem and my shift was over. By midnight, I had placed a call to my primary doctor who worked for Ingleside Medical Associates. The on-call physician instructed me to ice the area and call first thing in the morning for an appointment.

Instead of waiting, my husband Chuck drove me to Chester County ER. I was worried and in a lot of pain. The ER doctor informed me from working with a Hoyer Lift the diagnosis was likely a herniated disc—he was sure as I was working as a nurse. He ordered the ER nurse to give me an injection of Demerol and assist Chuck to get my limp body in the car. Soon home in bed, I slept 7 hours.

The most dangerous profession for work injuries, nursing reported over 35,000 injuries to the Department of Labor in 2015. This is more injuries than construction workers or policemen. Nurses, the heart and soul of health care, and a disposable workforce.

I called NAGE, my union, and left a voicemail since it was the weekend. Every day, unions speak to hospital administrators on safety issues, unsafe working conditions from nursing storages, and old outdated equipment, but money rules the day. It is easier to pay Workers’ Comp than teach staff safety and install ceiling lifts. Later, I learned through my union that the Hoyer Lift was not to be on the floor, and immediately after my injury, ceiling lifts were in fact installed.

That week, Ingleside Medical Associates ordered PT, X-rays, and pain medication, but my doctor noted reflexes, not a serious injury, to the Department of Labor. After speaking to my insurance carrier, lying in a cylinder machine with headphones on listening to Tom Petty, the MRI confirmed a herniated disc, with nerve impingement. My ER physician’s diagnosis was 100% correct. He also informed me that many studies show health care workers are injured from Hoyer Lifts and disabled the rest of their careers.

Later in January 2011, I agreed to my first back surgery, as I could not sleep or bear the daily pain and involuntary spasms from my work injury. Doctor Aksu made a small incision at the base of my spine and the area was covered with a Band-Aid.

My sisters Gail and Holly, their husbands Tom and Bob, and my husband Chuck waited in the surgical waiting room for many hours. Eventually, my doctor requested that they go home as he was sure I would sleep overnight at Brandywine Hospital. I surprised him and the staff and awoke quickly after returning to my room from the OR.

Pressing my nurse call bell, she came into my room to take down my side rails since pressure made me have to void quickly from all the IV fluids given during my surgery. I surprised the staff as I put on my jeans and asked for Chuck because I wanted to go home. PT gave the OK after they observed me walking the hall and taking several steps up and down in front of them. Determined as supper was served, Chuck picked me up and I went home to bed!

Many weeks passed and many PT sessions completed, but the involuntary spasms would not cease in my right leg and foot. I returned to VA no longer in the role of nurse but as technician—making beds, serving snacks, and taking urine samples over to the lab across the street. Twenty years of service, and no flowers or cards were sent to my home address from administration.

I went through the stages of grief. First, denial—my nursing career would come back. Then, a lot of anger. I often cried at home and yelled at Chuck for no reason. Life became different. My appearance on the floor caused resentment for a male NA, as he stated I made the foot staff short.

Time went by, not knowing what to expect. I hired an attorney for Workers’ Comp as the VA never offered forms or explained any of this complicated system during my long rehab. I called NAGE since I was not having anything placed into my account from VA or the Department of Labor. I was payless!

The last position offered was in their call center. I accepted, though my involuntary spasms increased with long periods of inactivity. My restrictions sent by my surgeon were not carried out.

Calls were nonstop from veterans needing appointments, drug refills, the Veteran Advocate, etc. The call center staff was assigned to any department by need. Some days, the call center was myself and one other coworker. My spasms worsened, so I hired a neurologist for his opinion. He started me on Klonopin.

Awake at 3 a.m. with right leg spasms, my leg arched in excruciating pain and twisted. Chuck would run over to our dresser to give me a Klonopin pill hoping it would calm down my pain, and the spasms would cease.

Inflammation of nerves caused these unexpected events, and the call center was making my condition worse. I resigned from VA, never to have any workmans’ comp during my rehab or disability until I hired another attorney and went with my medical records before a judge for a hearing.

Life was different. No more hiking Hawk Mountain, no bending over to garden, as this was too strenuous at that time. But my favorite PT was a morning walk on a trail across from our Citadel Credit Union. A small stream often carried newly hatched fuzzy baby ducks. Spring is a favorite season of mine with baby ducks, fawns, and geese.

Before Spring 2015, I was ill and slumping as I walked and I was very tired. Dr. Aksu stated I needed a spinal fusion due to the deterioration of L5-S1, a recurrence of my work injury. After careful thought, I agreed and signed consent. One sunny morning in May 2015, Chuck drove me to Paoli Hospital.

Just the words spinal fusion sent chills down my spine!

On May 13th, everything was in order and I went for the spinal fusion. I was greeted by two nurses who instructed me to wash my body with warmed germ wipes, get into a gown and then the ER-type bed. Soon they hooked me to IV fluids and took my blood. Hours passed. Chuck took a walk.

Dr. Aksu said hello and I was off to the OR. I said a prayer, and the OR nurses introduced themselves, making me more comfortable. I had full confidence in Dr. Aksu. We have known him from years before when he operated on Chuck’s mom, Anne.

I awoke in a spacious bedroom and bath. Chuck gave me a goodbye kiss and my friend Peggy took off to drive home. Traffic was already thick.

I did not sleep until after midnight. The nurse came in, took vital signs, and gave me all medications as ordered. She also helped me order an open-faced turkey sandwich before the kitchen closed.

I rang the bell a lot during my operation, but their technicians and nurses were first-rate. I wrote their nurse manager a thank you card for all the excellent care I had.

I requested ice bags all night since that helped with the pain. Then breakfast came, oatmeal and coffee. Just as I started adjusting in bed, Mr. Perry came to check my incision, change the dressing, and discharge me.

I was delighted to leave and showered quickly. Chuck picked me up after lunch. I would have never imagined being disabled at 55, yet it happened.

Congress needs to pass across-the-board safety laws for health care workers, and the VA needs to pay money to their injured workforce. I used my annual leave and sick leave for my surgeries, which were never reclaimed because the VA had so many roadblocks.

If you aspire to be a nurse, be sure to get yourself a good disability plan and pay your premiums, as one fine day you may need that money. I loved serving veterans, but my treatment after the Hoyer Lift injury was awful. From one seasoned nurse to another, I urge you to research your potential employers before accepting a job.