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Georgia Nurses Association
3032 Briarcliff Road
Atlanta, GA., 30329-2655
Tel.(404) 325-5536
Fax. (404) 325-0407
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GNA Workplace Advocacy

 
     
  The information expressed in this document has been prepared in the Office of General Counsel, American Nurses Association by staff members who are not licensed to practice law in the State of Georgia. In making this document available, the American Nurses Association and the Georgia Nurses Association are not offering legal advice, are not holding themselves out as practicing law in Georgia and are not offering to represent the reader in any capacity. The information contained in this document is intended to be used as a general educational tool and is not intended to be a source for individual legal advice. Anyone using this document cannot rely on the information in it to answer individual workplace situations but should seek the advice of their own attorney who can evaluate the specifics of a particular set of facts and apply the law accordingly.  
 
 
 

Frequently Asked Questions

  
 
 
    My unit manager has decided to change the unit's shifts (from 8 hours to 12 hours). When I was hired I agreed to work an 8 hour shift. Do I have any recourse about this?  
 
 
    I've been terminated. What are my rights regarding the termination? What can I found out about the information that is in my personnel file?  
 
 
    My hospital is beginning to talk about mandating overtime? Can I refuse to work overtime? What are my legal responsibilities to my patient when we are understaffed?  
 
 
    If I report unsafe conditions in my agency can I be fired?  
 
 
   I've been asked to float to a unit that I have not been oriented to and do not feel safe in providing care. Can I refuse to take this assignment?  
 
 
    What are my responsibilities related to the supervision of other licensed and unlicensed personnel?  
 
 
   I work 8 and 12 hour shifts.  Very often the nurses are too busy to leave the unit for breaks and meal times.  Should I be paid over time for this?  
 
 
   Does my employer have to arrange for me to have breaks and mealtimes since it is taken from my total number of hours at work?  
 
 
     
 

Question:        My unit manager has decided to change the unit's shifts (from 8 hours to 12 hours). When I was hired I agreed to work an 8 hour shift. Do I have any recourse about this?

Whether you have a valid basis to challenge this change depends on the terms and conditions articulated at the time you accepted the job and the format in which the job offer was made.  Do you have an employment contract that sets out the hours of work?  If so, you should review the terms of the contract to assess whether the hours were set without providing the employer the ability to unilaterally change the shift.  Typically, however, registered nurses do not have individual employment contracts, so you are more likely in a position of evaluating an initial offer letter to see if it can be interpreted as a contract.  The more precise the letter and the clearer your agreement to or reliance upon the offer letter, the better basis you have for arguing that you have a contract or some other basis for opposing the shift change.  You should also check the facility’s employment manual or policies to see if there is a basis for claiming that the shift should not change.  If your shift is lengthened beyond 8 hours, you may be entitled to overtime payments.   Generally, under federal law applicable to the private sector, overtime is due for work beyond 40 hours in a work week. Nursing care facilities may pay employees overtime after 40 hours in a 7 day workweek or alternatively, use the "8 and 80" system. Under the "8 and 80" system, the nursing care facility may pay employees ‑‑ with whom they have a prior agreement ‑‑ overtime for any hours worked after more than 8  hours in a day and more than 80 hours in a 14‑day period. You should check with a local attorney regarding these issues.

Question:        I've been terminated. What are my rights regarding the termination? What can I found out about the information that is in my personnel file?

If you do not have a personal employment contract that has a specified term, you are an “at will” employee.  This means that the employer can end your employment at any time and for almost any reason, as long as the reason is not unlawful.  There are federal and state anti-discrimination laws that would prohibit an employer from terminating you because of race, religion, gender, age, and national origin.  If you have a disability, termination may be prohibited if reasonable accommodation could be offered to you.  Discrimination issues may be brought to the Equal Employment Opportunity Commission or to the state equivalent.    There are also protections against termination for exercising your rights under the Family Medical Leave Act.  Whistleblower protection is formally available by law in some states, and the equivalent protection could be acquired through use of “wrongful discharge” theories or contractual theories derived from an employer’s personnel manuals or policies. Whistleblower protection is available in Georgia in a limited way and only deals with those involved with state programs. Georgia state law prohibits retaliation in very narrowly defined areas; for example, where an employee has been summoned for jury duty. There is also some limited protection for a state employee who reports fraud, waste and abuse in state programs and operations.  Generally, access to one’s own personnel file is a matter of the employer’s policy.  State and federal employees may look to applicable statutes to gain access to their personnel files.  Check with a local attorney about your options.

Question:         My hospital is beginning to talk about mandating overtime? Can I refuse to work overtime? What are my legal responsibilities to my patient when we are understaffed?

The issues that registered nurses must face in responding to overtime requests include patient care and claims of patient abandonment as well as the possibility of being charged with insubordination by the employer for refusing to follow a supervisory directive.

In September 2001, the Georgia Board of Nursing addressed the issue of patient abandonment and subsequently adopted the National Council on State Boards of Nurses (NCSBN) resolution on patient abandonment and added an additional statement to create the Patient Abandonment Policy Statement, which can be found on the Georgia Board of Nursing website, www.sos.state.ga.us/plb/rn/board_policy.htm which reads as follows:

“The concerns expressed regarding patient abandonment and mandatory overtime is equally shared by members of the Georgia Board of Nursing. Board staff and Board members alike, are increasingly being confronted by consumers and employers regarding these issues. With today’s health care environment and current nursing shortage, I fear these scenarios will continue to surface.

“During the Board’s July meeting, a brief discussion occurred for the need to further dialogue and explore these issues from a regulatory standpoint. Board members reviewed various positions taken by other jurisdictions and a position statement has recently been adopted. During the September 19‑21, 2001 Board Meeting, the Georgia Board of Nursing approved the adoption of NCSBN’s resolution that states the following:

‘That the National Council of State Boards of Nursing [NCSBN] promotes safe and effective nursing practice in the interest of protecting public health and welfare. Therefore, National Council recognizes the professional responsibility of nurses to accept or decline overtime assignments based on their self‑assessment of ability to provide safe care.’

“In addition, the Board also approved the following definition for Patient Abandonment to be utilized by the Board staff as the Board’s official position:

‘Leaving an assigned patient(s) assignment, for which you have accepted responsibility, prior to the end of an agreed upon work period without appropriately notifying supervisory personnel.’”

Central to any inquiry is whether the nurse consents to accept responsibility after the end of an agreed upon work period.  How is one’s work period defined?  Is it incorporated into a position description or general operating procedures?  Did the nurse agree to work overtime prior to the assignment? The employer’s written policies may be helpful in some circumstances.

Question:      If I report unsafe conditions in my agency can I be fired?

There are always risks to taking action, but disclosures under federal occupational health and safety law are not a legal basis for termination. Nonetheless, Georgia is what is termed “an at-will” state. That is, an employer can terminate an employee based on a good, bad or no reason (provided that statutory laws are not violated in the termination). Also, state employees have limited protection against retaliation for disclosure to a public employer of  government waste, fraud or abuse, which may have some application to reporting unsafe conditions.  Recourse on the part of other nurses could be sought under alternative legal theories such as wrongful discharge.  Consult a local attorney.

Question:      I've been asked to float to a unit that I have not been oriented to and do not feel safe in providing care. Can I refuse to take this assignment?

Yes, you can refuse the assignment, but once again, the nurse risks being disciplined. The hospital risk manager or legal staff would not want a nurse assigned to float without orientation as hospitals can be subject to civil suit for doing so results in harm to patients. If you believe that you must decline an assignment, you should state the reasons in writing and be sure to provide your statement to the  proper personnel, e.g., the nurse executive.  Be sure to keep your statement polite and factual, but make it clear that your actions are dictated by the Code of Ethics for Nurses or conditions of licensure with respect to practicing within the scope of your knowledge.  Documenting your action will assist you in showing that you did not intend to act in an insubordinate manner, but your conduct still could fall within the “at will” standard and trigger some form of sanction.

Question:       What are my responsibilities related to the supervision of other licensed and unlicensed personnel?

Again, the Georgia Board of Nursing has addressed supervision of unlicensed personnel in its policy statements and decision making tree.  The policy statement reads as follows:

Assignment to Unlicensed Assistive Personnel Policy Statement

 

There has been a substantial increase in the use of unlicensed assistive personnel (UAP) to provide direct patient care services in the changing health care industry. UAP’s are found performing nursing activities in almost all health care settings.  Because there is a potential that the improper utilization of unlicensed individuals may result in a risk to public safety, the Georgia Board of Nursing has promulgated rules regarding the criteria under which a registered nurse may assign certain tasks to unlicensed assistive personnel.

 

Other states have promulgated rules to define the parameters within which a licensed nurse may allow an unlicensed individual to provide direct care to patients.  Some states chose to define task lists for UAP’s, often because the state directly regulates these care providers.  However, by creating task lists for UAP’s, an unofficial scope of practice is created. Also, there is no guarantee that a licensed health care professional is involved in the assessment of the patient to determine if the task can be safely provided by a UAP.  Therefore, the Georgia Board of Nursing has determined that development of lists of activities that may unequivocally be performed by unlicensed individuals does not result in the best protection for the public.

Many states have language in their Nurse Practice Act that specifically provides for “delegation” to unlicensed individuals.  OCGA 43‑26‑1 Georgia Nurse Practice Act does not provide for delegation of licensed activities to unlicensed individuals.  Based upon well‑established administrative case law, RNs may not delegate activities which require professional nursing licensure to unlicensed individuals unless they have specific statutory authority to do so. If the care and activities under the specific circumstances do require the knowledge and skills of a registered nurse, and if a registered nurse permits an unlicensed individual to engage in these activities, it is inappropriate delegation of licensed activities.  This inappropriate delegation has regulatory consequences.  However, registered professional nurses may delegate professional nursing activities to other licensed individuals where there is statutory authority within their practice act to perform such acts (e.g., to Licensed Practical Nurses who are under the “direction and supervision” of a Registered Professional Nurse).

The Georgia Board of Nursing has determined that certain tasks can be individually assigned to unlicensed individuals and has generated rules to this end.  The Rules have their statutory basis in O.C.G.A. 43‑26‑12(a)(3) and O.C.A. 43‑26‑12(a)(5).  The exemptions for the requirement of licensure as a registered nurse are that:

      (a)  No provision in this article shall be construed to require licensure in Georgia as a registered professional nurse in:

 

            (5) The performance of auxiliary services in the care of patients when such care and activities do not require the knowledge and skill required of a person practicing nursing as a registered professional nurse and when such care and activities are performed under orders or direction of a licensed physician, licensed dentist, licensed podiatrist, or person licensed to practice nursing as a registered professional nurse;

Registered nurses have always utilized unlicensed individuals to assist in the provision of nursing care. OCGA 43‑26‑1 et seq. acknowledged that practice by incorporating certain exemptions from the requirement of professional nursing licensure within the Nurse Practice Act.  OCGA43‑26‑12 (5) provides an exemption to licensure for the performance of auxiliary services in the care of patients when such care and activities do not require the knowledge and skills required of a person practicing nursing as a registered professional nurse and when such care and activities are performed under orders or direction of a licensed physician, licensed dentist, licensed podiatrist, or person licensed to practice nursing as a registered professional nurse.  Therefore if the care and activities meet all the above criteria for the exemption, it is an unlicensed activity and can be assigned.

`The Georgia Board of Nursing has generated rules and a decision making tool to assist registered nurses and nurse employers to make appropriate decisions regarding whether to assign a task to an unlicensed person.  The tool, “RN Assignment Decision Tree” will assist the registered nurse to evaluate patient care tasks on an individual patient basis.  It guides the nurse to assign only those tasks that can be safely performed by trained unlicensed assistive personnel.  The decision-making tree is at the URL given for the Georgia Board of Nursing listed above.

Question:       I work 8 and 12 hour shifts.  Very often the nurses are too busy to leave the unit for breaks and meal times.  Should I be paid over time for this?

Generally, rest periods of less than 20 minutes must be counted and paid as hours of work.  Bona fide meal periods of 30 minutes or longer are not treated as hours of work. If the employee is required to remain at his/her work station or perform tasks during the meal period, the time should be treated as work time.   The U.S. Department of Labor has a “help” line for overtime questions:  1-866-4-US-WAGE. 

Question:       Does my employer have to arrange for me to have breaks and mealtimes since it is taken from my total number of hours at work?

If the time is taken from your total number of hours of work, you should not be required (or “suffered and permitted”) to work during those periods, as noted above.