What are my rights as a nurse during the COVID-19 Pandemic and could I be at risk for professional discipline?

Posted On: April 7th, 2020

Professional Discipline Attorneys Lawyers Albany Saratoga Schenectady NYOur Registered Nurse and Personal Injury Lawyer at LSL Explains Nurse Rights During Coronavirus.

The current global pandemic is unlike anything any of us have seen in our lifetimes and is particularly stressful for health care providers on the frontlines. While several state Boards of Nursing have released information to guide nurses, LPN’s, and other direct care providers regarding their rights and obligations, as of the writing of this blog, New York has yet to address some of these burning questions.

Central to most questions nurses may have right now is the concept of “patient abandonment”, and whether refusing to care for a patient without proper PPE to protect yourself, amounts to patient abandonment. New York law prohibits a nurse from abandoning a patient and doing so could result in professional discipline through the New York State Department of Education, Office of the Professions, the agency responsible for licensing and overseeing the practice of Nursing in New York State.

What is the definition of patient abandonment in New York?

Section 29.2(a)(1) of the Rules of the Board of Regents states that unprofessional conduct includes “abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a….hospital…or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients”.

Key considerations for determining whether a nurse has abandoned a patient include:

  • Whether the nurse accepted the patient assignment, which established a nurse-patient relationship.
  • Whether the nurse provided reasonable notice when severing the nurse-patient relationship.
  • Whether reasonable arrangements have been made for the continuation of nursing care by others when proper notification is given.

Can an employer force a nurse to work without proper personal protective equipment, otherwise knowns as PPE?

A 2002 memo jointly published by the New York State Office of the Professions and New York State Board of Nursing noted that every licensed nurse is responsible for preserving their own integrity and safety and is also professionally accountable for the nursing care that they provide to their patients.

All nurses and nursing assistants are entitled to keep themselves safe through appropriate use of PPE. The laws governing the practice of nursing in New York supports the ability of a nurse to refuse an assignment when they do not have the knowledge, skill, competence, and ability to safely accept it. Having PPE, or not having PPE, would likely come under the “ability” section.

Choosing to refuse an assignment is a challenging ethical dilemma without a clear answer. Ultimately, a nurse does have the right to refuse assignments believed to subject him or her or their patients to an unacceptable level of risk. Additionally, a nurse has a professional responsibility to advocate for practice settings that minimize risk to both them and their patients. However, refusing to accept an assignment may still result in an employer taking disciplinary action against the nurse.

By not accepting an assignment, a nurse has not created a nurse-patient relationship, meaning it is not patient abandonment to refuse an assignment. If a nurse has already accepted an assignment however, the nurse’s professional license may be at risk if he or she fails to continue that assignment, unless he or she has handed off the assignment and been relieved of responsibility for the patient.

It is important to document in writing any refusal either per the facility protocol/form if one exists, or in a simple written note. Examples of such protest or refusal forms can be found online.

One difficulty that exists is determining what is considered “proper PPE”, as CDC guidance is presently constantly changing. Numerous professional organizations have released position statements indicating that PPE protocols and guidance should not be based on availability or the supply chain. Nurses should partner with their employer to stay current regarding evidence-based guidelines.

Can an employer force a nurse to work on a designated “COVID-19” floor?

With elective procedures cancelled, many nursing floors may become obsolete for the time being, but the demand for nursing care remains high with the influx of patients suffering from COVID-19 or non-COVID-19 patients needing to be separated from those infected. Hospitals and health care facilities may seek to re-assign nurses to an area of need and nurses may have to decide whether to accept an assignment in an unfamiliar area. Prior to accepting any assignment, it is a nurse’s professional duty and responsibility to consider whether he or she is competent to provide care to the potential patients.

Guidance from the Office of the Professions suggests that it would not be considered patient abandonment when a nurse refuses to float to an unfamiliar unit when there has been no orientation, preparation, or appropriate modification of assignment. This guidance notes however that to become an RN or LPN, you must met educational and examination requirements that assure minimal competence in the delivery of basic nursing care. Refusing to float, based on a statement that a nurse is not competent to provide patient care to an entire unit of patients, when there has been good-faith efforts to re-assign only those duties that fall within the nurse’s expected level of competence, may be considered professional misconduct.

If a nurse decides to refuse an assignment, the nurse should remain at the workplace and offer to perform other work that does not pose an imminent risk to the nurse’s or the patient’s safety or health. Again, a decision to refuse an assignment could result in disciplinary action by an employer. Documentation in writing of a nurse’s refusal or protest of an assignment is again vital to protecting the nurse.

In these uncertain times, the outcome of any disciplinary matters may be uncertain as a result of the current national and state emergency declarations.

Can an employer require mandatory overtime?

Under ordinary circumstances, New York Labor Law section 167 does not allow an employer to require mandatory overtime and a nurse who works more than 16 hours in a 24-hour period could be subject to a charge of unprofessional conduct for willful disregard of patient safety. Numerous exceptions exist including a health care disaster, declaration of emergency, an emergency requiring overtime to provide safe patient care, or an ongoing medical or surgical procedure. Given New York State’s declaration of emergency, an employer could be permitted to require mandatory overtime.

Can a nurse refuse an assignment based on personal health circumstances (pregnancy, auto-immune disorder, etc.)?

If a nurse has a health condition that he or she believes requires some accommodation in the workplace, the nurse should consult his or her health provider and talk to the employer about the need for reasonable accommodations.

Can an employer require a nurse to go into work if they are sick?

According to CDC guidelines, a health care provider with even mild symptoms consistent with COVID-19 must cease patient care activities and leave work. A health care provider in any of the risk exposure categories that develops signs or symptoms consistent with COVID-19 must contact their established point of contact (e.g. a manager, occupational health department) for medical evaluation prior to returning to work.

Situations are rapidly evolving and health care workers must ensure that they are protecting not only themself but their patients.  If you are not comfortable working due to an illness and you are being required to stay at your employment, it is important that you document your request and medical issue.

Consult With An Attorney

When faced with a painful and potentially life-altering legal situation, you want the best people on your team. Someone you can trust. An advocate that listens and becomes your voice. A dedicated, seasoned professional who genuinely cares and can provide guidance in a time of uncertainty.

If you have been charged with a criminal offense or you or someone close to you has been injured, contact LaMarche Safranko Law for a no-obligation consultation, or call (518) 982-0770. We have law offices in Albany, Clifton Park and Plattsburgh NY, and we are available to take your call 24 hours a day.

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LaMarche Safranko Law PLLC

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