Chapter 7 The Nevada Nurse as an Employee
OBTAINING EMPLOYMENT 7:2
Information available to the public 7:2
Employee rights 7:4
Sexual harassment discrimination 7:4
Federal law 7:6
Nevada law 7:9
Age discrimination 7:12
Procedures for filing an ADEA complaint 7:14
Disability discrimination 7:15
Filing procedures 7:18
FAMILY AND MEDICAL LEAVE 7:19
ON THE JOB INJURIES 7:21
REFUSING AN ASSIGNMENT 7:23
LAW ENFORCEMENT ISSUES 7:26
EMPLOYMENT TERMINATION 7:29
Federal and state labor laws establish and protect the rights of a nurse as an employee. This chapter will discuss various issues that may confront a nurse in the workplace, and cover the protections mandated by both Nevada and federal law. A nurse will likely encounter many situations in the course of employment that will require important time-sensitive decisions with potentially significant employment consequences. This chapter will address issues such as sexual harassment and discrimination in the workplace, on-the-job injuries, medical and family leave, patient care determinations, and employment and termination rights.
According to the most recent figures available from the United States Bureau of Labor, registered nurses are the largest group of professionals in the health care field, with about 1.97 million nurses employed throughout the country. Hospitals employ about two thirds of all registered nurses, while the remainder work in physician’s offices, clinics, home health-care agencies, nursing homes, temporary help agencies, schools, and government agencies. The Bureau expects the nursing field to grow faster, on average, than any other profession through the year 2006, with the largest growth in the home health, long-term, and ambulatory care segments. Much of this growth is attributed to the “graying” baby-boomer generation. Other reasons cited are consumer preference for care in the home, and the technological advances which make it possible to perform increasingly complex treatments there. Accordingly, employment arrangements for nurses are becoming even more complex, as are the legal and ethical issues surrounding their work.
The material provided in this chapter is intended to provide the practicing nurse with general information relating to employment issues. This material should not be considered an exhaustive treatment of the intricate and context-specific legal issues. A nurse practitioner who is faced with a legal issue in the workplace should seek the advice of an attorney experienced in labor law.
A nurse seeking employment should be aware that the health-care labor market is becoming more competitive and specialized. Continued training and education helps the nurse remain competitive in this market and provides greater employment opportunities. Employers can afford to be selective, and may have great latitude to ask about an applicant’s past work experience, and may often ask about matters that may seem personal. A proactive approach is the best way for a nurse applicant to present information to a prospective employer. A nurse should collect copies of any peer reviews or performance evaluations, and seek letters of reference from professional colleagues or supervisors to present to the prospective employer. An employer will also want to see a professional resume along with educational transcripts and copies of licenses and certifications.
Employment agencies that specialize in the placement of nurse practitioners and technicians can be a valuable resource when seeking employment. These agencies are also governed by federal and state anti-discrimination legislation as discussed in this chapter.
Information Available to the Public
When seeking employment, a licensed nurses should know that certain information concerning her educational background, professional qualifications, or professional disciplinary proceedings is made available to the public by the Nevada State Licensing Board (Board). The Board is required by law to make and keep a record of all its proceedings. Included within this record is a file of all applications for licenses and certificates, along with the action the Board took. The Board is also required to maintain a record of any rulings or decisions made on filed complaints, investigations requiring a Board hearing, or cases in which the licensee or holder of a certificate is charged but makes no defense. These are available for public inspection.
The Board keeps a register of all licensed nurses and all nursing assistants certified in Nevada. At least semi-annually, the Board must publish a list of the names and addresses of persons licensed or certified by it and of all applicants, licensees and holders of certificates whose licenses or certificates have been refused, suspended or revoked within the preceding year.
The Nevada Attorney General’s Office has issued an opinion letter stating that in order to determine what portions of a licensee’s file is subject to public inspection under this section, the Nevada State Board of Nursing must balance public and private interests; however, while the public has the right to know an applicant’s educational background, whether the applicant has passed the appropriate licensure examination, and the status of the applicant’s license along with whether any disciplinary action has been taken against the applicant, the board can consider confidential such information as residence address, birth date, social security account number, medical and criminal history, investigative records compiled by the board that do not lead to the filing of formal charges, documentation of attendance at substance abuse support group meetings or other information that a reasonable person of ordinary sensibilities would consider to be personal and sensitive information, such that their disclosure would be objectionable. AGO 90‑15 (10‑15‑1990).
Under Nevada law, any employee who has been employed for more than 60 days is entitled to examine and keep copies of her personnel records maintained by employers, including performance evaluations and any other material related to her employment. NRS 613.075. The employee is not entitled to review or copy any records related to confidential reports from previous employers or investigative agencies, other confidential investigative files concerning the employee or person referred, or information concerning the investigation, arrest or conviction of that person for a violation of any law. If an employee is terminated, that person has 60 days to inspect and copy her employment records. Most health care delivery systems have extensive quality assurance programs that regularly conduct performance reviews for all personnel. An employment applicant who provides records of favorable reviews to a potential employer will certainly distinguish themselves from other candidates.
Under Nevada law, certain entities are required to maintain detailed personnel records. For example, a nursing pool must maintain and make available to its employees all written employment policies related to wages and hours, eligibility for vacation, sick leave and other benefits. In addition, a current health record of all staff members, performance evaluation policies, and job descriptions for each position must also be made available. NAC 449.7477. Every employee of an ambulatory surgical center must have a current personnel record that contains the employee’s detailed job description, a copy of the employee’s current professional license, a current health examination record, and an annual performance evaluation by the employee’s supervisor. NAC 449.986.
Employers are entitled to inquire into certain matters of personal concern to the applicant and may perform a comprehensive review of an applicant’s professional qualifications and employment history. An employer may legally request that the applicant submit to a background check regarding criminal convictions, license suspension, or other disciplinary actions. The employer may also inquire into an applicant’s age, physical ability to perform the tasks of the job, and any disability that might interfere with a bonafide job requirement. Under certain circumstances, an employer may request that an applicant submit to pre-employment drug screening to detect the presence of illegal substances. An employer may also require that all employees submit to periodic or random drug testing while employed. These procedures must be enforced fairly and without discrimination.
A nurse who is HIV-infected or carries any other transmissible blood-borne infection is bound by the principles of professional responsibility found in the Nevada Nurses Practice Act and the American Nurses Association (ANA) Code. The first and foremost duty is to protect the patient. The ANA requires that a nurse who knows that she has a transmissible blood‑borne infection should voluntarily avoid exposure‑prone invasive procedures that have been epidemiologically linked to HIV or other blood‑borne infection transmission. The nurse has the additional duty to provide a warning to a patient who has been exposed to sero‑positive blood.
Increasingly, employers are undertaking laudable formal efforts to identify, confront, and eradicate sexual harassment in the workplace. Such harassment creates an intolerable and illegal environment that interferes with the job performance and mental health of its victims. It diminishes the effectiveness of the workplace dynamic, and imperils the care rendered to patients by nurses. Most importantly, sexual-harassment discrimination violates an individual’s rights.
Sexual harassment may range from subtle inappropriate sexual advances, comments, actions, or behavior, to physical assault or rape in the most extreme instances. Experts no longer view sexual harassment as an aberrant occurrence between individuals, or a product of the natural physical attraction among men and women. They now consider sexual harassment as unacceptable sexualized assertion of power and dominance typically perpetrated by a superior upon a subordinate employee. Unfortunately this type of behavior can sometimes be fostered, tolerated, or ignored by the employing agency.
The most recent statistics released by the U.S. Equal Employment Opportunity Commission (EEOC) demonstrate that workplace sexual harassment claims continue to increase despite a heightened awareness among employers and stricter penalties for violations. The Commission is the federal agency responsible for enforcement of certain federal anti-discrimination legislation, including the Civil Rights Act of 1964. Between 1992 and 1998, claims filed with the EEOC alleging sexual-harassment discrimination in the workplace increased almost fifty percent, rising from 10,532 to 15,618. The percentage of claims filed by men has also increased from 9.1% in 1992 to 12.9% in 1998. It should be noted that these increases may demonstrate a greater willingness to assert personal rights and pursue formal remedies. In 1998 alone, employers paid out over $34 million in EEOC administrative settlements. Alternatively, the continued increase in claims filed may show the persistence and pervasiveness of the harassment problem.
Although sexual harassment discrimination claims filed by men with the EEOC increased between 1992 and 1998, by far the majority of claims were filed by women. Experts do not agree on whether the causes of this disparity are that women tend to assert dominance in sexualized workplace behavior less than men, or whether it is the result of the disproportionate number of males in higher employment positions.
The health care field presents a work dynamic and environment rife with many of the characteristics which experts agree can foster sexual harassment. Hospitals and clinics employ physicians, administrators, nurses, pharmacists, technicians, orderlies and many others whose jobs are organized along an explicit hierarchical stratification. The intensity often involved in rendering medical care can lead to more intimate personal relationships among co-workers than those found in more typical office settings. Also, frank discussion of physiology and bodily functions is a common and necessary part of the profession, while such discussion would seem out of place in most other work places. As a result, sexual innuendo and inappropriate behavior may be more common in the health care workplace than in most other employment fields.
Title VII of the Civil Rights Act of 1964, as amended in 1991, prohibits sexual harassment in the workplace as a form of sex discrimination and governs employers of 15 or more employees. The EEOC provides that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.
Prohibited conduct can occur in a variety of circumstances, including but not limited to the following:
- Sexual harassment can occur between two people of the same or opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co‑worker, or a non‑employee.
- The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur even though the victim suffers no economic injury or has not been discharged from his or her position.
- The harasser’s conduct must be unwelcome to be illegal.
Federal law makes an employer responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct. The employer is not responsible if it can show that immediate and appropriate corrective action was taken once the sexual harassment became known. An employer may also be responsible for the acts of non‑employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing claims submitted to the EEOC, the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non‑employees.
The prototypical sexual harassment scenario involves a quid pro quo proposition such as when a superior explicitly or implicitly makes submission by another employee to sexual demands a condition of employment or advancement.
The EEOC has determined that sexual harassment also occurs when an employer or superior permits a “hostile work environment” to exist. In this type of harassment, the only issue is whether the sexual conduct of the harasser(s) creates such an environment that it interferes with the employee victims performance of his or her job, or offends or intimidates the employee to the extent that a reasonable person would be so affected. The EEOC presently defines harassment as falling into two general categories: that which culminates in tangible employment action, and that which creates a hostile work environment.
When investigating complaints of sexual harassment, the EEOC takes into account the whole record on a case-by-case basis, including all relevant circumstances such as the nature of the sexual advances and the context in which the alleged incidents occurred. A hostile work environment may be found by considering the frequency of conduct, its severity, and whether physical threat or intimidation was present. No single factor is determinative. Things such as lewd jokes, suggestive conduct, displaying of pornographic material, and repeated insistent requests for social conduct in or outside the workplace have been found to contribute to a hostile work environment. In some circumstances, a single incident of physical assault is sufficient to support a finding of a hostile work environment.
The anti-discrimination statutes are not intended to provide a code of civility or manners in the workplace. For conduct to be considered actionable under Title VII of the Civil Rights of 1964, as amended in 1991, it must be “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998). Furthermore, the conditions of employment are considered altered only if the conduct resulted in a significant change in employment status or was sufficiently severe or pervasive to create a hostile work environment. Thus the federal law does not prohibit simple teasing, off-handed comments, isolated incidents that are not extremely serious, or even sexual conduct, unless it is unwelcome. Only unwelcome sexual conduct that is a term or condition of employment, or which results in a tangible change in employment status, or creates a hostile work environment constitutes a violation.
Two recent decisions by the United States Supreme Court have clarified the standard of vicarious liability of an employer for unlawful harassment by supervisors. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S.Ct. 2285 (1998). In those decisions, the Supreme Court was guided by two fundamental principles. First, an employer is responsible for the acts of its supervisors, and second, employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.
The decisions represent an important if subtle narrowing of an employer’s legal responsibility in cases where the employee has unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid the harm, and loss of employment or significant change in employment status are the product of the harassment. An employer who has exercised reasonable care to prevent and promptly correct any harassing behavior, may assert the defense that the victim-employee unreasonably failed to take steps to protect him or herself. Thus, under current law, the employee-victim has a duty to avail him or herself of such preventive or corrective opportunities provided by the employer before a successful allegation of unlawful sexual harassment discrimination can be maintained against an employer.
The EEOC investigates or mediates allegations of sexual harassment in the workplace at the request of individuals or organizations when a formal complaint has been filed with the agency in person, by telephone, or by mail. For more information, the EEOC may be contacted at 800‑669‑4000 or 800‑669‑6820 (TDD).
There are certain timing requirements for filing a sexual harassment suit relative to when the unlawful conduct occurred. A complaint must be filed with the EEOC within 180 days of the alleged discriminatory act. However, in states or localities where there is an anti-discrimination law and an agency authorized to grant or seek relief, as there is in Nevada, a complaint must first be presented to that state or local agency. In such jurisdictions, the employee must file charges with the EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier. It is best to contact the Commission promptly when discrimination is suspected. When charges or complaints are filed beyond these time frames, you may be barred from seeking any other remedy.
The Nevada legislature has adopted the provisions of the Civil Rights Act of 1964 in the Nevada Fair Employment Practices Act, Chapter 613 of the Nevada Revised Statutes (Employment Act). The Employment Act incorporates, with few alterations, the same prohibitions against discrimination in the workplace based upon sex as those codified in the Civil Rights Act. The Act also charges the Nevada Equal Rights Commission with responsibility for investigating complaints of sexual harassment discrimination. The Nevada Commission makes administrative determinations that may influence the outcome of civil litigation between a harmed employee and the employer. The Commission can also facilitate negotiations to cure the problems or assist in working out a settlement among the parties.
The State of Nevada has also enacted laws explicitly prohibiting sexual harassment between state employees. The Nevada Administrative Code, section 284.771, states: “sexual harassment violates the policy of this state and is a form of unlawful discrimination based on sex under state and federal law. An employee shall not engage in sexual harassment against another employee, an applicant for employment, or any other person in the workplace.” The Code provides severe penalties for state employees who violate this section.
Nevada law also has two other very important provisions relative to sexual harassment in the workplace. First, the legislature has imposed civil liability on employers for damages to those harmed by the intentional acts of their employees under certain circumstances. NRS 41.475. In general, an employer is not liable for harm or injury caused by the intentional acts of an employee if the conduct of the employee is truly independent of the employer, was not committed in the course of a task assigned to the employee, or was not reasonably foreseeable. However, in Nevada an employer who is aware of, or participates in, condones, or ignores sexual harassment by an employee, or the creation of a hostile work environment by an employee, and does nothing to prevent harm or injury, may be liable for civil damages.
Second, Nevada criminal law provides for misdemeanor criminal penalties for anyone who commits harassment upon another. NRS 200.571. A person commits harassment if, without lawful authority, the person knowingly threatens:
- To cause bodily injury in the future to the person threatened or to any other person;
- To cause physical damage to the property of another person;
- To subject the person threatened or any other person to physical confinement or restraint; or
- To do any act which is intended to substantially harm the person threatened or any other person with respect to his physical or mental health or safety; and
- The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out.
Both the EEOC and the Nevada Equal Rights Commission recommend that employees who object to sexual conduct or advances in the workplace first confront the individual and inform him or her that their conduct is unwelcome and offensive, and request that the offensive behavior cease immediately. The harassed employee should either make a verbal objection directly to the harasser or send a written request via certified mail that the objectionable behavior stop. The employee should also use any grievance mechanism provided by the employer to inform the employer of the offensive and unwelcome conduct. Union members will find it helpful to involve a union representative either directly or indirectly in confronting a harasser and informing the responsible employer or supervisor.
It is important that an individual whose behavior is objectionable to another, is aware that his behavior is considered unwelcome. For example, a co-employee who persistently requests dates or other social contact may not understand that such inquiries are unwelcome and uncomfortable unless he or she is clearly told so. Courts are not adept at second-guessing the complex social nuances of personal interaction and will look at all relevant circumstances to determine whether a reasonable person would understand that the conduct complained of was unwelcome, and also whether a reasonable person would find the conduct so severe and pervasive as to constitute harassment or create a hostile work environment.
If the employee is uneasy with direct confrontation, or if confrontation is unsuccessful, the employee’s immediate supervisor, or an even higher authority, should be notified. Most employers have adopted some form of formal complaint procedure with their human resources departments to document and notify the employer of employee conduct. Documentation is critical in successfully resolving harassment charges internally or for litigating claims. An employee who believes he or she is subject to sexual harassment should document offensive behavior as accurately as possible as the harassment occurs. The employee should also present a formal written complaint to the employer.
The EEOC emphasizes prevention and strongly advises employers to adopt and publish clear policies and procedures to prevent harassment from occurring, and to respond swiftly and impartially to allegations of harassment by its employees. The anti-discrimination policies adopted by an employer should make it clear that sexual harassment (or harassment based on race, color, religion, national origin, age, or disability) will not be tolerated by anyone.
Some courts have held that employers who have anti-discrimination policies and procedures in place are only responsible for discriminatory conduct that persists after an employee has filed a formal complaint. Employees who fail to seek preventive or corrective opportunities provided by the employer may forfeit substantial rights and remedies that would otherwise be available.
If the harasser is someone other than a fellow employee, such as a patient, the nurse should follow a similar course of action as when the harasser is a co-worker, beginning with clear and unequivocal communication to the harasser that the conduct is unwelcome and offensive. The nurse should also inform supervisors and other co-workers of the unacceptable behavior. Finally, if the offender is a patient, the nurse should inform the patient’s attending physician who is ultimately responsible for the care and conduct of that patient.
The EEOC recommends that employers institute a comprehensive complaint process designed to encourage victims to come forward. The process should not require an employee to take burdensome measures to file a complaint. Additionally, the complaint process should allow employees to make a complaint directly to the department charged with receiving such complaints. A system which requires an employee to first notify a supervisor of harassing conduct is defective because it may be the supervisor who is engaging in the harassment.
The most important attribute of any process devised by an employer to discourage and correct sexual harassment discrimination is impartiality. In order to ensure impartiality, many employers have charged their personnel or human resources departments with responsibility for handling harassment complaints. It is clear however, that unlawful harassment in the workplace will only be eradicated through the cooperation of all individuals in the work environment.
Age Discrimination & the ADEA
As its title suggests, the Age Discrimination in Employment Act of 1967 (ADEA) is federal legislation enacted expressly “to promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment, and to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U.S.C. 621. The law mandates, among other things, that it is unlawful for a private, federal, state or local government, employer with 20 or more employees:
- To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or
- To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.
29 USC 623(a).
Labor organizations are similarly prohibited from excluding or limiting any individual from membership, or otherwise discriminating against an individual, because of age.
The ADEA act protects individuals who are 40 years of age or older, whether they are employees or job applicants. The ADEA rules govern all aspects of employment, including hiring, training, job assignment, compensation, promotion, benefits, layoff, and termination. The Act also makes it unlawful for employers to retaliate against an individual who opposes employment practices which discriminate based on age or for filing an age discrimination charge. The Act also prohibits retaliation against an individual who testifies or participates in any way in an investigation, proceeding, or litigation under the ADEA.
However, the Act does not prohibit employers from asking prospective employees their age or date of birth, unless such inquiries evidence an unlawful intent to discriminate. Additionally, in 1990 the ADEA act was amended by the Older Workers Benefits Protection Act (OWBPA). Under the OWBPA act, employers may reduce benefits based on age in limited circumstances where they can show that the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Finally, an employee can contractually waive rights provided under the ADEA if the waiver is both informed and voluntary. In order for a waiver to be valid, it must be in writing and easily understood, and it must specifically refer to ADEA rights or claims. Additionally, the employee may not waive rights or claims that may arise in the future, and the waiver must be in exchange for valuable consideration. Finally, the individual must be advised in writing to consult an attorney before signing the waiver, and she must be given at least 21 days to consider the agreement and at least 7 days to revoke it after signing it. Note that if the employer asks an individual to sign a waiver of ADEA rights in connection with an exit incentive program or some other employment termination arrangement, the requirements for the waiver to be valid are greater.
The ADEA has important implications for the nurse practitioner. For example, institutional administrators may not assign older nurses out of mainstream positions and into undesirable jobs because of their age or as an attempt to coerce early retirement. A health care provider may not discriminate in hiring, or in any other way, by giving preference to one individual over another because of age, if the individual is 40 and over. For example, if two nurses apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either one on the basis of age. The employers decision must be based on some other bona fide factor such as training, skill, or specialty.
Age discrimination is often very difficult to prove because employers justify their employment decisions in a variety of ways, such as, declining job performance of the employee, lack of qualifications, or even over-qualification of an experienced but older nurse applicant. A recent case illustrates how conduct by an employer which appeared to the employee to be age discrimination can survive an age discrimination law suit. Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3rd Cir. 1993).
Ms. Clowes was a 53 year old nurse who had worked for 30 years at the defendant hospital. After transferring to the IV Team, Ms. Clowes believed her supervisor, the 34 year old head nurse, was engaging in age discrimination. Ms. Clowes believed her supervisor spoke to her in a demeaning and condescending manner and unfairly criticized her of ineptitude at starting IVs, often in front of other nurses. The supervisor would also check each patient to see if Ms. Clowes had done anything wrong.
Ms. Clowes suffered depression, took much sick leave and vacation, and eventually sought employment elsewhere. She filed suit against the hospital claiming that the discriminatory and oppressive work environment forced her involuntary retirement in violation of the ADEA. The hospital defended the suit, saying that Ms. Clowes job performance had declined, and that her supervisors actions were simply out of concern for the patients and were necessary to maintain the professional standards of the IV Team.
The appellate court ruled in favor of the hospital because the record did not reveal any of the factors crucial to a finding of constructive discharge. The hospital never threatened Ms. Clowes with discharge, or urged or suggested she resign or retire. Similarly, Ms. Clowes’ employer did not demote her or reduce her pay or benefits. Clowes was not involuntarily transferred to a less desirable position, and her job responsibilities were not altered in any way. The court also found it significant that Clowes, prior to resigning, never requested to be transferred to another position, never advised the hospital that she would feel compelled to leave if changes regarding the manner in which she was being supervised were not made, and did not
even attempt to file a grievance until long after she had stopped working at the hospital. The court concluded that a reasonable employee will usually explore, and perhaps has a responsibility to explore, alternative avenues thoroughly before coming to the conclusion that resignation is the only option.
The court did note that the case might have been found in Clowes’ favor had working conditions been so intolerable that a reasonable employee would feel forced to resign without remaining on the job for the period necessary to pursue the alternative avenues of resolution.
Procedures for Filing an ADEA Complaint
Remarkably, either as a product of demographics or as a testament to the Act’s effectiveness, the number of complaints filed with the U.S. Equal Employment Opportunity Commission under the ADEA has steadily declined between 1992 and 1998, from 19,573 to 15,191.
The procedures for filing an age discrimination complaint under the ADEA with the Commission are similar to those for filing a sexual harassment discrimination complaint. Federal law provides that a civil suit may not be commenced until 60 days after charges are filed with the Nevada Equal Rights Commission, and must be commenced within 300 days of the alleged discriminatory action, or 30 days after receipt of notice of termination of state proceedings, whichever is earlier. Thus, Nevada employees who feel that they have been unlawfully discriminated against on the basis of age, must first file a complaint by phone, in person, or in writing with the Nevada Equal Rights Commission. It is advised that the complaint be filed in writing with the Nevada Commission as soon after the discriminatory conduct occurs as possible to prevent being barred by the 300 day statute of limitations for filing with the EEOC.
The EEOC provides a very important and valuable pre-complaint service for any employee who believes that her employer may have engaged in age discrimination. Because discrimination by employers is often not patently obvious, an employee, or even an employer, may submit a request for an informal opinion letter from the Commission to better determine whether the employer’s conduct constitutes discrimination. A request for an opinion letter should be submitted in writing to the Chairman, Equal Employment Opportunity Commission, 1801 L Street N.W., Washington DC 20507. The request should contain:
- A concise statement of the issues on which an opinion is requested;
- A complete statement of the relevant facts and law; and
- The names and addresses of the person making the request and of any other persons involved.
The Commission issues opinion letters at their discretion. However, when the Commission decides not to issue a letter it may provide informal advice or guidance to the requesting party. It is important to note that any advice or guidance to the requestor does not represent the formal position of the Commission and does not commit the Commission to the views expressed therein.
Disability Discrimination & the ADA
In 1990, Congress enacted the Americans with Disabilities Act (ADA), legislation adopted in response to serious and pervasive historical discrimination against people with disabilities in many areas, including employment, education, health services, and access to public services. When the ADA was being considered, Congress found that approximately 43 million Americans who had one or more physical or mental disabilities had been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. 12101.
Title I of the ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against otherwise qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The Act defines a person with a disability as one who:
(1) has a physical or mental impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment; or
(3) is regarded as having such an impairment.
An employee or applicant with a disability who is otherwise qualified for a permanent job position is defined as one who, with or without reasonable accommodation, can perform the essential functions of the job in question.
Reasonable accommodation may include, but is not limited to: 1) making existing facilities used by employees readily accessible to and usable by persons with disabilities; 2) job restructuring; 3) modifying work schedules; 4) reassignment to a vacant position; 5) acquiring or modifying equipment or devices; 6) adjusting modifying examinations, training materials, or policies; and 7) providing qualified readers or interpreters. An employer is required to accommodate a qualified applicant or employee with a known disability if it would not impose an “undue hardship” on the operation of the employer’s business. The ADA defines undue hardship as an action requiring significant difficulty or expense, considering such factors as an employer’s size, financial resources and the nature and structure of its operation. It is important to note that an employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.
Under the ADA, an employer may not ask job applicants about the existence, nature or severity of a disability. However, an employer may inquire about an applicant’s ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job-related and consistent with the employer’s business needs.
The ADA prohibits discrimination against employees who have sought treatment for drug or alcohol abuse, and who are not currently using illicit drugs or abusing alcohol. Therefore, a recovering alcohol or drug dependent employee may not be discriminated against on the basis of that disability, but employers may make an employment decision based on an employees current substance use that interferes with an employee’s job performance.
Employees and applicants currently using illegal drugs are not protected by the ADA when an employer acts on the basis of such use. Testing for illegal drugs is not subject to the ADA’s restrictions on medical examinations, and employers may hold illegal drug users and alcoholics to the same performance standards as other employees.
Several recent United States Appellate Court cases have clarified what an employer’s obligations are under the ADA and what exactly constitutes a disability. In Albertsons, Inc. v. Kirkingburg, 143 F.3d 1228 (9th Cir. 1998), the petitioner truck driver who suffered from amblyopia, an uncorrectable condition that left him with 20/200 vision in his left eye, brought a suit after he was fired by his employer for failing the applicable federal Department of Transportation requirements. The appellate court held that an employer is not obligated under the ADA to make accommodations where they are not reasonably possible due to federal regulations setting minimum vision requirements, which cannot be met by an employee with an uncorrectable vision impairment.
In another case, involving commercial airline pilots who sued their employer for violating the ADA, similar issues are addressed. In Sutton v. United Airlines, the United States Appellate Court held that severely myopic individuals were disabled under the ADA, but determination of whether individuals impairment substantially limits major life activity should take into consideration mitigating or corrective measures used by individual. The Court further held that the pilots corrected vision did not substantially limit their major life activity of seeing. Sutton v. United Airlines, 130 F.3d 893 (10th Cir. 1997).
Decisions involving nurses claim of ADA violations have been made on a case by case, fact specific basis. In a recent Texas case, a clinical nurse failed to convince a federal court that she had been discriminated against on the basis of a disability by her employer hospital after an on the job injury left her unable to perform the lifting required by her job. Guneratne v. St. Mary’s Hospital, 943 F. Supp. 771 (S.D. Tex. 1996). Barbara Guneratne had been working for St. Mary’s Hospital for about four years when she injured her back while attempting to lift a patient. As a result of her injuries, she left work for about ten months and upon attempting to return, she was told that the hospital was only obligated to continue her employment if she was able to perform the essential functions of her job as a clinical relief nurse with or without accommodation. The physical requirements for the clinical nurse position included lifting or carrying weight up to 40 pounds 61‑100% of the time, and over 40 pounds 31‑60% of the time. Nurses at St. Mary’s were often required to lift or move patients such as is needed to turn them in their beds, help them in and out of wheelchairs, or to assist them with walking or bathing. Many of these demanding lifting tasks were considered necessary for emergency situations when an immediate response was required.
The court held that Mary Guneratne did not qualify for protection under the ADA because she could not perform the essential functions of her job, specifically the lifting required, either with or without reasonable accommodation. The court went on to dismiss Ms. Guneratne’s suggestion that, as an accommodation, she should have been allowed to avoid heavy lifting or permitted to request assistance in situations where heavy lifting was required. The court felt that “such an accommodation would eliminate or reallocate an essential function of Guneratne’s job, which the ADA does not require.” Additionally, such an accommodation could pose a risk to the health and welfare of St. Mary’s patients in the event of an emergency situation requiring immediate action.
In another recent case, a federal court held that a former cardiac catheterization laboratory nurse was not disabled under the ADA simply because injuries prevented her from working the job of her choice. Mowat-Chesney v. Children’s Hospital, 917 F. Supp. 746 (D. Co. 1996).
In the case, Chesney, the plaintiff nurse, had sustained cervical spine injuries in a car accident that aggravated injuries related to two previous accidents. As a result, she was unable to wear a lead apron for several hours as required by her position. After the nurse experienced motor dysfunction in her hand during a procedure, the hospital recommended that she transfer to another nursing position in the hospital. Chesney declined the position offered to her by the hospital, because the hours were not as she desired.
The Appellate Court ruled that based on the evidence, Chesney was not “disabled,” as defined by the ADA and its supporting regulations, insofar as the “major life activity” of working is concerned. At most, Chesney’s injuries precluded her from working one job, that of catheterization laboratory nurse. The Court noted that she was capable of working in any other nursing position, and was in fact offered another nursing position by the hospital. Therefore, the hospital had fulfilled its obligations under the ADA.
As with other forms of employment discrimination, if an employee suspects that she has been discriminated against by an employer on the basis of a disability, the employee is protected by both Nevada and federal law. Complaints for discrimination should be filed as discussed in the previous sections with the Nevada Equal Rights Commission and the U.S. Equal Employment Opportunity Commission.
Complaints for discrimination based on disability filed with the EEOC have increased dramatically since the introduction of the ADA. In 1992, 1,048 complaints were filed with the Commission and by 1998 almost 109,000 complaints had been registered. Employers have paid out over $211 million in monetary benefits to adversely affected employees. However, increasing compliance efforts by employers and greater clarification of the ADA requirements by the courts and administrative agencies are credited with an overall reduction in claims filed since 1995.
FAMILY AND MEDICAL LEAVE
The scope of protection provided to employees under federal law has increased substantially in the past four decades. The Family and Medical Leave Act (FMLA), which went into effect in 1993, further contributed significant protections to anti-discrimination safeguards by prohibiting employers from terminating or making other adverse employment decisions against an employee who requires leave for family or medical reasons.
Congress intended the Act “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 U.S.C. 2601. The Act entitles employees to take reasonable leave for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse, or parent who has a serious health condition. The Act does not guarantee medical leave to care for unmarried domestic partners or extended family members, even if he or she is living with the employee.
The Act governs private employers of 50 or more employees, and state and federal employers. It assures eligible employees the right to take unpaid leave for medical or family reasons without being terminated for up to 12 weeks in any 12-month period. A covered employee is one who has been employed for 12 months and for at least 1,250 hours of employment during the previous 12 months. Nurses who work in physicians offices or small clinics should be aware that the provisions of the Act do not apply to private employers with fewer than 50 full or part-time employees.
Employers must grant eligible employees leave to care for their children after birth, adoption, or the advent of foster care. Eligible employees must also be granted leave to care for a spouse, son, daughter, or parent with a serious health condition, or if the employee has a serious health condition which makes him or her unable to perform the job function. A “serious health condition” includes illness, injury, impairment, or physical or mental condition that involves either in-patient care in a hospital or other facility, or continuing treatment or supervision by a health care provider. Colds, routine check-ups, dental procedures, or temporary viral infections do not qualify as serious health conditions. “Continuing treatment” is defined as two or more visits to a health care provider or one visit followed by a course of continuing treatment.
Employees who take family or medical-related leave must be allowed to keep the health benefits they had before leaving. If the employee is a co-payer on the premiums, the employee must continue to make co-payments during the leave period. However, if the employee does not return to work, the employer may be able to recover its share of payments made during the leave period, provided the employee does not return for reasons other than the reason for taking the leave. For instance, if the employee takes another job she will be liable for the employers share of payments during her leave.
The employee must provide the employer with at least 30 days advance notice if the need for the leave is foreseeable, such as an expected birth, placement of a child by adoption or foster care, or if the employee plans for a major surgical procedure. Otherwise, notice must be given as soon as practicable under the circumstances. Oral notice may suffice in certain circumstances.
The FMLA also imposes extensive record-keeping requirements on employers. Employers must make and keep the following records:
- Payroll and identifying employee data for each employee, including name, address, job title, rate of or basis for pay and terms of compensation, daily and weekly work hours per pay period, and additions to or deductions from wages, and total compensation paid;
- The dates leave is taken by an employee under the FMLA. Note, leave must be designated in the employers record as FMLA leave;
- If the FMLA leave is taken in increments other than entire days, the hours of leave;
- Copies of notices requesting leave furnished by employees to employers under the FMLA;
- Any documents, written or electronically generated, that describe employee benefits or employer policies and practices concerning paid or unpaid leave;
- Premiums for health care or other employee benefits paid for by the employer in part or whole; and
- Records of any dispute between employer and employee concerning the designation of leave as FMLA leave.
An employer is not required to spontaneously or regularly submit records to the Department of Labor, but is required to maintain such records and produce them if so requested by the Department. Employers who fall under the FMLA, must post in a conspicuous place a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints for violations with the Wage and Hour Division of the Department of Labor. An employee may file a complaint for a FMLA violation with the Secretary of Labor. An employee may also file a civil lawsuit against the employer within two years of the most recent FMLA violation or within three years of the last willful violation.
Nevada follows the provisions of the FMLA regarding unpaid leave. Employers and employees may make other contractual arrangements regarding leave so long as they do not violate state or federal labor regulations. Nevada law requires that the same leave benefits that are granted to employees for sickness or disability, must also be extended to pregnant employees. NRS 613.335. A pregnant employee must be allowed to use the leave before and after childbirth, miscarriage, or other natural resolution of her pregnancy. The Supreme Court of Nevada has held that an employee complaining of a violation of this statute must demonstrate the employer’s history of granting similar medical leave benefits to other employees, or a written policy to that effect. 950 Ryland, Inc. v. Daane, 840 P.2d 1236 (Nev. 1993).
ON THE JOB INJURIES
Potentially harmful medical instruments and substances are often present on the nurses job. Nurses work in environments that involve a high potential for on the job injuries. In addition, disoriented, uncooperative, and aggressive patients have been known to physically harm nurses. If a nurse is injured in the course of her employment, she has certain rights and remedies under both civil and criminal laws.
A nurse who is threatened with harm or harmed by a patient, co-worker, or other person while on the job should immediately report the incident to the local police department and file an incident report that describes all relevant information. In general, the police will conduct an investigation, interview witnesses, and gather other evidence. The case is then referred to the local district attorneys or city attorneys office who will determine whether the incident and supporting evidence warrant criminal prosecution. Nevada law contains numerous provisions that impose criminal punishment for assault, battery, harassment, stalking, and other crimes upon the person. In addition to contacting the police, a nurse who believes she has been the victim of criminal conduct on the job should consult her personal attorney and her employer.
Worker’s compensation benefits compensate an employee for on the job injuries and related lost work and expenses, whether the injuries resulted from an accident or were intentionally caused by another person. As in other states, the Nevada industrial insurance system was established by the state as an independent actuarially-funded system to insure employers against liability for injuries and occupational diseases for which their employees may be entitled to receive compensation under state law. Employers are required to make contributions to the fund which is then available for employees who suffer an on-the-job injury and submit a claim. A nurse who suffers any injury in the course of employment is eligible for compensation from the fund.
Worker’s compensation benefits cover lost wages, usually at a set rate, resulting from the temporary disability. The benefits also cover the medical expenses related to treatment. Employees who are permanently disabled, either partially or totally, are entitled to a flat award, determined according to the type and extent of impairment. If an employee is disabled, to the extent that returning to work is not possible, an award is usually based on loss of earning power and any physical or mental limitations.
In addition to worker’s compensation benefits, an injured employee may have a civil cause of action against any person who harms her. Civil actions can provide a broader basis for recovery than worker’s compensation. An injured employee may recover damages for pain and suffering or emotional distress that are not available under the worker’s compensation plan. However, an employee who is awarded damages from a civil suit will have to reimburse any monies received from workers compensation funds.
In addition or as an alternative to suing the individual who caused an on-the-job injury, the injured employee can bring a civil action against her employer for premises liability if the employer negligently permitted the harm to occur in the workplace. For example, if a patient with known violent tendencies is admitted, a health care provider may have a heightened duty to prevent that patient from causing harm to others, including nurses.
Courts have carefully scrutinized whether the harm was foreseeable when assessing an employer’s liability in these circumstances. Some courts are less likely to find that an employer is liable for injuries suffered by employees, likening the nursing profession to other inherently hazardous occupations, and finding that the nurse has voluntarily assumed the risks of the occupation. Courts may also rationalize their decision in finding employers not liable for a nurses injuries, by determining that the nurse injured by a patient lacked the requisite specialized skills and training to properly handle the patient, making her at least partially responsible for the injuries suffered. Finally, and most importantly, many suits against employers are legally barred under the rationale that workers compensation is the exclusive remedy for workplace injuries.
Most employers have policies and procedures to document and act upon incidents resulting in on-the-job injuries. Even if the employer does not have formal procedures, an injured employer should, as soon as reasonably possible, write a detailed account of the circumstances that resulted in the injury. The report or other documentation will be necessary to be eligible for worker’s compensation and will be extremely helpful if a civil suit is later pursued.
REFUSING AN ASSIGNMENT
In the course of professional nursing, the practitioner must always be guided by the best interests and care of the patient, and balance those interests against the demands of supervisors or the employer. A nurse may be asked to undertake certain duties on an as-needed basis that exceed her qualifications or expertise simply because the facility lacks the appropriate staffing. In many instances, a nurse has an affirmative duty to reject an assignment if she feels unqualified to handle it. Other times, a nurse may disagree with the patient’s care as ordered by the patient’s physician.
The code of professional conduct as adopted and codified by the Nevada legislature makes clear the duties of the nurse practitioner. However, the code does not specifically instruct the nurse on the appropriate protocol in these difficult situations. Although an obstetrician would never be asked to fill in for an orthopedic surgeon, nurses at many health care institutions have increasingly been required to “float” to other departments as a way to cover staffing shortages within the facility. Staffing practices, like floating, cross‑training, and the use of larger float pools, will continue to create situations where a nurses competency to perform tasks is questionable.
The Nevada Administrative Code provides an extensive list of activities that constitute unprofessional conduct in professional nursing. Refusing an assignment or failing to refuse an assignment both may constitute unprofessional conduct, depending on the circumstances, and may result in disciplinary action against the nurse and possibly subject the nurse or employer to civil liability. For example, the following acts are all considered unprofessional conduct subject to disciplinary action:
1) assuming duties and responsibilities within the practice of nursing but without adequate training;
2) assuming duties and responsibilities within the practice of nursing if competency is not maintained or the standards of competence are not satisfied;
3) assigning or delegating functions, tasks, or responsibilities to unqualified persons;
4) failing to safeguard a patient from incompetent care; and
5) failing to collaborate with other members of a health care team as necessary to meet the health care needs of a patient.
Often an institutional health care employer will explicitly describe the duties and qualifications expected of each nursing staff position. Ultimately, the employer is responsible for hiring and assigning competent and qualified staff, but the professional nurse also has a duty to render the highest standard of care to each patient. Legally, a nurse is expected to provide a level of care commensurate with that of a reasonably prudent nurse with similar training and education under similar circumstances.
If a nurse practitioner is assigned a position or task for which she feels unqualified or unsuited, she should express such reservations to the immediate supervisor or individual responsible for the assignment. The prudent employer may have anticipated such possibilities and may have provided written procedures to question such assignments. A nurse contesting an assignment should carefully comply with any procedures established by the employer to address these situations.
The Nevada Nurse Practice Act also provides in extensive detail the respective duties and standards for practice for registered nurses, licensed practical nurses, advanced nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and nursing assistants. NAC 632.010-632.940. A nurse may refuse an assignment of a task, if accepting such assignment would be a direct violation of the Nevada Nurse Practice Act. For example, under the NAC provisions a licensed practical nurse may not administer intravenously colloid therapy, blood or blood products, or any drug other than an antibiotic or antihistamine H2 receptor antagonist. NAC 632.455. A licensed practical nurse who is asked to administer anaesthesia intravenously may, or more properly must, refuse outright based on the restrictions of the code. If a nurse is unsure whether an assignment is beyond the scope of duties authorized under the code, she should contact the Nevada Board of Nursing or review a copy of the relevant Nevada Administrative Code.
In emergency situations, the interests of patient care may not permit formal opposition to an assignment. Whenever possible, the nurse who feels unqualified to perform a procedure or technical task should express these reservations and request assistance or supervision before proceeding. If an assignment is accepted under duress, such as threat of discharge, the nurse should memorialize an account of the incident in writing as soon as possible, in the event there is subsequent internal review or other administrative action.
The American Nursing Association (ANA) provides that nurses should reject any assignment that puts patients or themselves in serious immediate jeopardy. The ANA supports the nurses obligation to reject an assignment in these situations even where there is not specific legal protection for rejecting such an assignment. The professional obligations of the nurse to safeguard clients are grounded in the ethical norms of the profession, the Standards of Clinical Nursing Practice, and state nurse practice acts.
In certain cases, a nurse practitioner may refuse an assignment that conflicts with personal values or ethics. Late-term abortion, “do not resuscitate” orders, withdrawal of nutrition or hydration, and sterilization are several areas that present moral and ethical dilemmas for the nurse practitioner. The ANA has published the non-negotiable Code for Nurses, which establishes the standard by which ethical conduct is guided and evaluated by the profession. The Code is intended to provide a framework within which nurses can make ethical decisions and discharge their professional responsibilities to the public, to other members of the health team, and to the profession. The ANA Code supports the right of nurses to refuse any assignment they ethically oppose. In 1995, the Joint Commission on Accreditation of Healthcare Organizations joined the ANA in supporting a nurses right to refuse an assignment based on moral conflict, and called for employers to establish standards to address staff requests not to participate in any health care that conflicts with personal, cultural, or religious beliefs.
Employers may also be obligated under the federal anti-discrimination legislation discussed in this chapter to accommodate an employees request not to participate in any procedure or regimen that conflicts with personal religious beliefs. This obligation is limited only when the accommodation would cause the employer undue hardship or where the objection conflicts with a basic requirement of the job.
Additionally, the Nevada state constitution contains a “conscience” clause that
guarantees the free exercise and enjoyment of religious beliefs and worship without discrimination or preference. A reasonable interpretation of the clause may allow a nurse to decline an assignment or refuse to participate in treatment that conflicts with her conscience or religious beliefs.
The public policy prohibitions against terminating at-will employees for refusing to participate in health care that conflicts with the law or a nurse’s conscience also provides protections. For example, an employer may not fire a nurse for refusing an assignment that exceeds duties authorized by the Nevada Nurse Practice Act.
It is the nurse’s paramount duty to advocate for the best care of her patients. However, potential conflict arises when a nurse questions or refuses a direct order by a physician. A nurse who believes that a physician’s care is not in the best interest of the patient should first confront the physician directly, emphasizing that the patient’s interest are at heart. If this attempt does not satisfactorily resolve the situation, the nurse should express her concerns to the ward supervisor or individual in the next most senior position.
Most hospitals have risk management and quality assurance departments that are responsible for overseeing the level of care provided at the institution. These departments usually have procedures designed to intervene should staff disagree on a patient’s best course of care.
LAW ENFORCEMENT ISSUES
Federal, state, or local law enforcement agencies frequently ask hospital staff to perform certain procedures on individuals held in their custody, such as emergency care, collecting evidentiary samples, or administering drug and alcohol testing procedures. If the person in custody is unwilling and resists such procedures, the nurse will be faced with the unenviable decision of whether or not to participate. In some states such as New Jersey, health care professionals who have refused to comply with police requests to collect samples from detainees have been charged with criminal obstruction of justice. The ANA Nurse’s Code, however, supports the nurse’s discretion to refuse to participate in any procedure to which a patient has not knowingly and voluntarily consented. Participation in procedures performed against a patient’s wishes is also considered a violation of the professional code of conduct. Knowing the law in advance will provide the nurse with better guidance in the event that she is asked to
administer tests or take samples from an uncooperative person in police custody.
Nevada law expressly provides that qualified medical care practitioners, as described above, who draw blood from a detainee at the direction of a police officer or the person being tested cannot be subjected to civil or criminal liability. NRS 484.393(3). It is also doubtful that the Civil Rights Act, 42 USC 1983, imposes liability on a nurse who collects a sample without force on a non-consenting subject.
However, medical personnel must still conform to the prevailing standard of care in withdrawing blood. If blood is drawn by force from a non-consenting subject, or the nurse acts negligently, she may not be immune from liability. Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998). Likewise, a nurse who draws blood despite an individuals expressed preference for an alternative testing procedure, such as breath or urine, or despite a request for an alternative medical practitioner, may be subject to civil liability. Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) (holding unreasonable under the Fourth Amendment a requirement to conduct a blood test where arrestee has agree to submit to a breath or urine test). Furthermore, the law provides that a person arrested for driving under the influence of alcohol or a controlled substance may, at their request and own expense, have a qualified person of their own choosing administer a chemical test or tests for determining the presence of a controlled substance or alcohol content. NRS 484.391(3).
Under Nevada law, any person who drives or is in possession of a vehicle has given implied consent to submit to an evidentiary test of his blood, urine, breath, or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance. Such tests must be administered at the direction of a police officer having reasonable grounds to believe that the person being tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance. NRS 484.383(1). Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant is exempt from a blood test but must submit to a breath or urine test. NRS 484.383(3). The implied consent doctrine even applies to suspects who are unconscious or deceased.
When requested by law enforcement personnel to collect a blood or other sample from an individual in their custody, the nurse practitioner should ask that the request be put in writing. In an ideal situation, a nurse who is requested by law enforcement to collect such samples should obtain the request in writing as well as the signed consent of the individual.
Nevada law provides that blood may be drawn by qualified physicians, physician’s assistants, registered nurses, licensed practical nurses, emergency medical technicians or technicians, technologists, or assistants employed in a medical laboratory for blood alcohol content analysis or for the detection of the presence of controlled substances. NRS 484.393(1)(a) and (c). The Supreme Court of Nevada has found that the statute’s purpose of stating who may draw blood is to ensure that a medically trained and competent individual draws the blood in an acceptable manner. State v. Webster, 726 P.2d 831 (Nev. 1986). By contrast, the law does not specify who may collect samples of urine, breath, or other bodily substances for alcohol or drug testing. If a nurse is required by law enforcement personnel to collect a urine or other bodily substance sample, the nurse should also request that the demand be put in writing.
Nevada law requires that if a person who is less than 18 years of age is directed to submit to an evidentiary test, the police officer directing the test shall make a reasonable attempt to notify the parent, guardian or custodian of the person, before such testing occurs. NRS 484.383(8). However, a nurse is not obligated to perform such testing at the direction of law enforcement personnel if in the nurse’s judgment such testing would constitute an ethical breach. If consent from a minor’s parent, guardian, or custodian is not obtainable, the nurse may at her discretion refuse to perform any testing procedures.
If a person being tested refuses to submit to the testing, as directed by a police officer, the officer may direct that reasonable force be used to the extent necessary to obtain the samples. NRS 484.383(7). Under these circumstances, the officer is not required to provide the subject a choice of tests, blood, urine, or breath for determining the alcoholic content or presence of a controlled substance in his blood. No more than three such samples may be taken during the 5‑hour period immediately following the time of the initial arrest. NRS 484.383(7). A nurse may consider whether he or she is willing to participate in taking a sample where it must be taken by force. A nurse is not obligated to perform tests under such circumstances and may decide that performing screening tests without informed voluntary consent constitutes an ethical breach.
In todays rapidly evolving economy, many health care employers find it necessary to reduce or reorganize staffing in order to respond to changes in the health care field. Often these changes involve terminating staff members, including nurses with long-term employment, for no other reason than to comply with budgetary constraints. The nature of the legal relationship between employer and employee will to a large extent define the rights and responsibilities of both parties in these situations.
Generally, employment is either by contract or “at-will” between the employer and employee. Nurses who belong to a labor union generally enjoy considerable job protection, either through the collective bargaining powers of the union or because the employer negotiates individual employment contracts with each nurse through the union. On the other hand, in an at-will employment arrangement, either party is free to terminate the employment relationship without notice and for any reason, or for no reason at all. There are certain public policy limitations to the at-will employment doctrine that limit an employer’s discretion, but those instances represent the exception rather than the rule.
An employer may generally dismiss an at-will employee without notice or explanation so long as the termination is not motivated by personal animosity or hostility. An employer is also prohibited by anti-discrimination legislation from firing an employee because of race, gender, national origin, religion, or any other reason that would violate federal or state law.
An at-will nurse who believes that she has been terminated for discriminatory reasons should contact the Nevada Equal Rights Commission to discuss possible claims against the employer. Recently, some employers have fired older at-will employees in an attempt to avoid pension benefits owed to the employees. The Employment Retirement Income Security Act (ERISA) was enacted to combat this practice, and provides additional civil remedies and rights for individuals to recover pension benefits.
An at-will nurse whose employment is terminated should request a written explanation for the dismissal. This explanation could be invaluable in the event that unemployment benefits to the nurse are withheld or contested. For example, under Nevada law a person is ineligible for unemployment benefits for the week in which she has filed a claim for benefits, if she was discharged from her last or next to last employment position for “misconduct” connected with her work. The individual remains ineligible for the benefits until she earns renumeration in covered employment equal to or exceeding his weekly benefit amount in each of not more than 15 weeks thereafter according to the seriousness of the misconduct. NRS 612.385.
Misconduct includes such acts as violation of an employer’s published policies, the use of alcohol or drugs in the workplace, or theft from the employer or a patient. It should be noted that Nevada courts have been quite strict in determining what acts qualify as misconduct and thereby cause the forfeit of unemployment benefits rights. For example, an employee who made no effort to inform his employer that his car broke down was terminated for misconduct because he failed to act reasonably and in good faith under the circumstances. Kraft v. Nevada Unemployment Security Department, 102 Nev. 191 (1986). In addition, actions such as sleeping on duty constitute misconduct and an employee’s refusal to submit to a drug test when the employer has good cause to suspect drug use constitutes misconduct.
Nevada law also prohibits payment of unemployment benefits to an at-will employee, subject to certain qualifications, whose unemployment is due to an active labor dispute at the establishment or other premises at which she is or was last employed. And in most cases, a nurse who voluntarily resigns forfeits all rights to unemployment benefits.
A nurse who is fired pursuant to a termination clause in an existing employment contract, or who departs at the end of the contract’s natural term, should carefully review the language of the contract to verify that the employer has complied with all requirements and investigate any other severance benefits to which she might be entitled under the contract. If a nurse believes she has been terminated in violation of an express provision in the employment contract, she should consult an attorney experienced in labor law and consult with a union representative, if applicable.
Some courts have found that an employment contract is implied when an employer provides an at-will employee with extensive written material, such as job manuals, which include general instructions and information about the job, payment, benefits, and other procedures. Some courts in these circumstances have awarded monetary damages for wrongful termination to dismissed at-will employees if an employer acts in contravention of a stated employment policy. Again, if a nurse believes she has been wrongfully discharged, she should contact an experienced labor attorney.
Current statistics as well as a wealth of other information can be found at the EEOC website at http://www.eeoc.gov.