Nurses doing all they can, but get fired and fight for Unemployment Benefits

On Behalf of | Feb 23, 2014 | Firm News |

An amazing thing happened several weeks ago: An Pennsylvania unemployment compensation case was decided that is representative of the numerous facts patters I address ever week in healthcare employer termination cases. Well, that’s not the amazing part.The amazing part is the court realized that in the health care field employer short staffing and patient overload require nurses to engage in triage-type medical decisions and prioritize patient care to save people’s lives. The court held that even though these split-second decisions may be in violation of work place rules, such violations cannot be the basis for a denial of unemployment compensation benefits because the nurse’s rule violations are not willful and intentional, but rather inadvertent and in the bests interest of the patient.This case is Durand v. Unemployment Compensation Board, 2014 Pa. Cmmw. Unpub. Lexus 86 (February 7, 2014). Ms. Durand was discharged from her nursing assistant position for violating an employer policy pertaining to resident safety after she chose to care for one patient over another due to the severity of care needed and failed to properly bandage a patient because of supply shortages. The referee granted benefits and her employer appealed, claiming nurse Durand engaged in willful misconduct by deliberating the violating a workplace patient treatment priority policy. This a fact pattern that every nurse I speak to comes across at least once a day.Typical of all health care related unemployment compensation cases, the employer placed into evidence workplace policies, documents signed by the employee acknowledging receipt of those policies, an incident report of the specific rule violation in conjunction with prior discipline and the warnings of workplace policies. Thereafter, the employer presented testimony of a human resource director and an assistant nursing director to establish the discipline policy, patient safety policies, and how employee becomes aware of the policies in question.In this case, the allegations were that Mr. Durand did not follow the assignment on her worksheet and did not place proper medical devices on the patient’s legs for which inefficient care was alleged and complained of by the patient’s family. Further suggestions of policy breaches by failing to contact charge nurses, supervisory nurses, and improper documentation of alteration of medical protocols was alleged. Based upon these suggested numerous chronological rule violations, the employer suggested that Durand was terminated for willful misconduct or failure to comply with workplace policies and procedures. (The employer chose the family over the hard working nurse.)Ms. Durand testified as to 1) her very busy schedule, 2) the insufficient medical bandages present on the workplace floor to properly bandage the patient in question, and 3) the number of competing patients one of which fell and required emergent care. Ms. Durant also testified that she always worked best of her ability but acknowledged that a shortage in workplace supplies, under-staffing, and extensive budgetary constraints in workplace forced her to address numerous employment responsibilities all of which were competing in nature. Unfortunately, Ms. Durant chose to care for a patient who was emergently injured instead of the patient for whom she ran out of bandages.Nevertheless, the employer fired her and contested her claim for unemployment compensation. After a hearing the referee found that there was no competent evidence to support the employer’s position that Mr. Durant deliberately refused to follow instructions, but was merely caught up in the multiple demands of her time. When the referee determined there was not a sufficient level of misconduct to deny unemployment compensation (granting her the benefits) the employer appealed. Before the Commonwealth Court, the employer argued that the employee did not have a basis to choose between which patient or wounds that she would care, but rather the employee had the follow work rules which she received.The Commonwealth Court focused on a multi-part test; whether a work rule was in existence, whether the rule violation was intentional and deliberate, and whether the employee had good cause for the violation. If the employee’s actions were justifiable and reasonable under the circumstances, a consideration of all the circumstances, including the reasons for the employee’s noncompliance with the employer’s directives, will require the conclusion that the employee had good cause for the conduct and such would not constitute willful misconduct under the law.The court emphasize the definition of the word intentional to mean “in an intentional manner; with purpose or intention.” Purposefully the court defined as “deliberate; in order to retain an end with a presumed or awareness of the implications or consequences of one actions”.With this burden of proof in mind, the Commonwealth Court respected Ms. Durand’s testimony of her very busy day, the shortage of workplace supplies, and the overriding medical needs of multiple patients on the floor. Failing to follow a workplace assignment sheet, or place proper bandaging when such were not in supply does not constitute willful misconduct. When faced with conflicting work policies and utilizing one’s best judgment to choose between which policy to follow, the court concluded Ms. Durant acted reasonably in light of all of the conflicts.Taking a patient to the bathroom before her leg was properly bandaged presents conflicting policies. Resident/patient hygiene and care is an overriding concern. Helping a patient who has fallen over a patient with a bandaging issue is a policy choice not an intentional rule violation. Giving showers to residence for their personal hygiene when they can’t walk or do for themselves versus taking care of the laundry on the beds are policy choices not workplace violations.Putting a patient back on the toilet or bringing her from the shower if one has fallen takes priority over arbitrary and senseless rules. Under these such circumstances, which I am sure many nurses come across every day, the Court determined that Mr. Durand had good cause for her actions and was justifiable under all of the circumstances. The court found her testimony credible and the employer’s choice to contest her unemployment compensation not valid in light of the evidence presented.This case has broad ramifications for many nurse workplace policy violation cases. With the increasing health-care demands of our society and the shortage of qualified caring nurses, employers will not be permitted to fight unemployment compensation benefits based upon an arbitrary and capricious application of inappropriate rules that do not mesh with the overpopulated and underemployed nursing environment and the overwhelming responsibilities the front line healthcare workers face every day.Please call me to discuss your workplace will violation and potential licensing reporting concerns in light of alleged rule violations. Please read my other blogs and do not speak with give statements to any investigator regarding the circumstances of any job related investigation.