Can an employer require a nurse to work longer than scheduled, or to work overtime?
How many consecutive hours or shifts can a nurse work?
The Texas Board of Nursing (BON) does not have authority over work-place issues, such as schedules or number of hours worked, either consecutively, in a given time period or "on-call". In 2009, during the 81st Legislative Session, SB 476 made changes to the Nursing Practice Act (NPA) and the Health & Safety Code. SB 476 applies to hospitals and nurses working in hospital settings only.
The NPA changed with the addition of Section 301.356, Retaliation Prohibited. This new language states that "the refusal by a nurse to work mandatory overtime as authorized by Chapter 258, Health and Safety Code, does not constitute patient abandonment or neglect."
The NPA and Board Rules have always emphasized the nurse’s responsibility and duty to the patient is to provide safe and effective nursing care. While the BON has not defined the term abandonment, SB 476, permits nurses to refuse to work overtime. However, this does not diminish the duty of each individual nurse to always act in the best interest of the patient and provide for their safety. If a nurse knows, or should have known, that a patient was potentially in danger by being left unattended the nurse’s duty is always to act in the best interest of the patient.
In relation to overtime and or consecutive hours worked, the nurse has a duty to recognize when he or she is unfit to practice secondary to physical, mental, and or emotional fatigue. Nursing judgment and provision of nursing care may be impaired if a nurse is physically, mentally or emotionally exhausted, which could lead to nursing errors.
Nurses must "know and conform" with the NPA and Board Rules as well as all the laws, rules and regulations for their particular practice setting. The NPA and Board Rules have the force of law for nurses; any nurse who violates some part(s) of the NPA or Board Rules is subject to possible reporting to the Board and possible disciplinary action on his or her license.
Rule 217.11, Standards of Nursing Practice is the primary rule applied to nursing practice issues. The following standards are applicable to most practice questions, regardless of the practice setting:
- Standard 217.11(1) (B) requires each nurse to promote a safe environment for clients and others. This standard establishes each nurse’s duty to his or her patient.
- Standard 217.11(1) (T) holds each nurse accountable to accept only assignments that are within the nurse's ability. If a nurse accepts an assignment, he or she is responsible for adhering to the NPA and Board Rules in delivering safe patient care.
- Standard 217.11(1) (S) applies to charge nurses or nurses who are in management positions. This standard is the "companion" standard to (1) (T), as it requires the nurse who is supervising other nurses to "make assignments" that take into account the educational preparation, knowledge, skills, and physical, mental and emotional abilities of the nurses for whom the supervisor is administratively responsible. This does not mean other nurses are working under the supervisor's license, or that the supervisor is responsible for every aspect of care delivered by other staff nurses. Assignments made to other licensed nurses do require forethought and adequate supervision.
- Standard 217.11(1) (U) holds supervisors responsible to oversee the nursing care provided by others for whom the supervisor is professionally responsible, from a licensure standpoint, the responsibility for overall patient care is the responsibility of the staff nurse accepting the assignment.
- While the BON does not have authority in employment situations, there are protections in both the NPA and the Safe Harbor Rule 217.20 for a nurse who declares safe harbor in good faith. If adverse employment action was taken against a nurse, then the nurse may choose to seek private legal counsel. Rule 217.20 (e) outlines the requirements the nurse must meet in order to secure the protections, what the protections are, and where they are listed in the Texas Occupations Code, Section 303.005.
Additional resources and contact information to guide nurses as they implement the new laws are:
- Board Position Statement 15.14, Duty of a Nurse in Any Practice Setting.
- Board Position Statement 15.6, Board Rules Associated with Alleged Patient "Abandonment".
- Frequently Asked Question (FAQ), Staffing Ratios.
- Frequently Asked Question (FAQ), When Does a Nurse’s Duty to a Patient Begin.
- Nurses, who practice in hospital settings, may wish to contact the Department of State Health Services (DSHS) – Health Facility Program at http://www.dshs.state.tx.us/hfp/default.shtm or 1-888-973-0022 for specific guidance related to the regulations for the official nurse staffing policies and plans that took effect on September 1, 2009.
- Nursing specialty organizations, such as the Texas Nurses Association at www.texasnurses.org or 512-452-0645.
- A Nurse Staffing Law Toolkit developed by The Texas Hospital Association at www.tha.org or 512-465-1000.
Revised October 2009