Fired for saying i might file safe harbor

[Wish4goodstaffing]

A few weeks ago I was called by a corporate nurse who verbalized I was being fired for saying i was thinking about filing safe harbor. She literally said this during my termination phone call. We had 2 cnas for the entire building and 3 nurses. My question is can I sue my former employer for wrongful termination???

[MunoRN, RN]

You can sue for anything you want, the question is whether you're likely to win.

There's nothing that explicitly prohibits an employer from terminating an employee for filing for "safe harbor" protections, although state-based employment termination and whistleblower laws would still apply .

"Safe harbor" is a mechanism for informing your licensing board that you recognize that an assignment is unsafe and may put your license in jeopardy, similar to notifying your licensing board that you've taken an "assignment despite objection". These are to protect your license, not your job.

[Wish4goodstaffing]

That's what I'm trying to figure out... of my chances are good? Or who I could talk to to get some more information. I thought it was illegal for them to use that as termination?

[MunoRN, RN]

There "whistleblower" laws that protect employees from being terminated for reporting violations of the law by their employer, but since in most states an overloaded patient assignment isn't illegal, that protection wouldn't apply.

Generally, if you're going to claim "safe harbor" you should only tell your licensing body that. Sometimes safe harbor or assignment-despite-objection claims go through a union, and the union might notify the employer of the number of claims submitted, they generally wouldn't tell the employer who filed the claims.

If the employer can argue that your threat to file "safe harbor" was disputing assigned duties then you can be fired for insubordination and there's not a lot you can do about that.

A lawyer could give you more definitive information.

[Wish4goodstaffing]

Oh no. They straight up said inwas fired for the safe harbor thing

[medic981, ADN, RN, EMT-P]

Your best course of action is to consult an employment attorney who knows the specific state law for your state and your situation.

[Sour Lemon]

I am unfamiliar with the legalities, but even in school, we were taught to start looking for a new job after invoking safe harbor.

[Jedrnurse, BSN, RN]

13 hours ago, Wish4goodstaffing said:

Oh no. They straight up said inwas fired for the safe harbor thing

In hindsight, for something like that, you shouldn't say, just do.

[ruby_jane, BSN, RN]

1 hour ago, Jedrnurse said:

In hindsight, for something like that, you shouldn't say, just do.

I was just thinking that. OP if you can prove you called Safe Harbor and that this is retaliation, your chances may be good. Two CNAs and three nurses for how many patients? Definitely worth a consult with a lawyer.

[MunoRN, RN]

16 hours ago, Wish4goodstaffing said:

Oh no. They straight up said inwas fired for the safe harbor thing

The problem with that is refusal to perform assigned duties is insubordination, which is a legally valid basis for termination, the only exception would be if you were refusing the assigned duties because you were asked to do something illegal.

You could potentially argue that you weren't necessarily outright refusing the assigned duties, although by openly threatening to file safe harbor you also weren't exactly accepting your assigned duties.

In general though, any healthcare employer worth working for should respond non-punitively to safety concerns.

[Horseshoe, BSN, RN]

In Texas:

Protection of Civil or Criminal Liability under Safe Harbor [NPR §303.005(h), 217.20(e)(2) & (3)]

Safe Harbor has no effect on a nurse’s civil or criminal liability for his/her nursing practice. The BON does not have any authority over civil or criminal liability issues. Safe Harbor does protect the nurse from retaliation by an employer or contracted entity for whom the nurse performs nursing services. There is no expiration of the protection against retaliatory actions such as demotion, forced change of shifts, pay cut, or other retaliatory action against the nurse.

https://www.bon.texas.gov/practice_peer_review.asp

Since you did not in fact make an official request for Safe Harbor, I don't know if you are protected from employer retaliation in this case.

You need to consult with a lawyer familiar with these types of issues.

[Horseshoe, BSN, RN]

On 10/17/2019 at 10:15 PM, MunoRN said:

Generally, if you're going to claim "safe harbor" you should only tell your licensing body that. Sometimes safe harbor or assignment-despite-objection claims go through a union, and the union might notify the employer of the number of claims submitted, they generally wouldn't tell the employer who filed the claims.

I don't know where the OP practices, but in Texas this is absolutely not true.

Where to send Safe Harbor requests

Please DO NOT mail or fax your request for Safe Harbor Nursing Peer Review to the Board of Nursing. The BON cannot conduct Peer Review-this must be done through the facility or agency where the assignment was made to you. Please review the following questions, as well as the instructions on the Comprehensive Request for Safe Harbor form.

https://www.bon.texas.gov/practice_peer_review.asp