Fired for saying i might file safe harbor

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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???

On 10/18/2019 at 2:42 PM, MunoRN said:

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.

Again, not the case in my state.

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(15) Safe Harbor--A process that protects a nurse from employer retaliation, suspension, termination, discipline, discrimination, and licensure sanction when a nurse makes a good faith request for nursing peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. Safe harbor must be invoked prior to engaging in the conduct or assignment for which nursing peer review is requested, and may be invoked at anytime during the work period when the initial assignment changes.

and also:

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(17) Whistleblower Protections--Protections available to a nurse that prohibit retaliatory action by an employer or other entity because the nurse: (A) made a good faith request for safe harbor nursing peer review under TOC §303.005(c) and this section; or (B) refused to engage in an act or omission relating to patient care that would constitute a violation of the NPA or Board rules as permitted by TOC §301.352 (NPA) (Protection for Refusal to Engage in Certain Conduct). A nurse invoking safe harbor under this section must comply with subsection (g) of this section if the nurse refuses to engage in the conduct or assignment; or (C) made a lawful report of unsafe practitioners, or unsafe patient care practices or conditions, in accordance with TOC §301.4025 (report of unsafe practices of non-nurse entities) and §217.19(j)(2) of this title.

https://www.bon.texas.gov/rr_current/217-20.asp

Safe Harbor should not be filed just because you don't want to accept an assignment. This should be reserved for situations that truly put patients at risk. But when it is justified and made in good faith, our state law protects that nurse from employer retaliation. I think every nurse should look up the applicable laws in their own state.

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Specializes in Critical Care.
2 minutes ago, Horseshoe said:

Again, not the case in my state.

(15) Safe Harbor--A process that protects a nurse from employer retaliation, suspension, termination, discipline, discrimination, and licensure sanction when a nurse makes a good faith request for nursing peer review of an assignment or conduct the nurse is requested to perform and that the nurse believes could result in a violation of the NPA or Board rules. Safe harbor must be invoked prior to engaging in the conduct or assignment for which nursing peer review is requested, and may be invoked at anytime during the work period when the initial assignment changes.

and also:

https://www.bon.texas.gov/rr_current/217-20.asp

Your link is consistent with my previous statements, that you're only protected if you were asked to something illegal, defined by your link from Texas as being "a violation of the NPA or Board rules", it does not cover what the nurse may perceive as a heavy workload.

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2 minutes ago, MunoRN said:

Your link is consistent with my previous statements, that you're only protected if you were asked to something illegal, defined by your link from Texas as being "a violation of the NPA or Board rules", it does not cover what the nurse may perceive as a heavy workload.

No, it also covers "unsafe practices."

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(d) Invoking Safe Harbor. (1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times: (A) when the conduct is requested or assignment made; (B) when changes occur or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned

that a nurse believes in good faith that patient harm may result; or (C) when the nurse refuses to engage in the requested conduct or assignment. (2) The nurse must notify the supervisor requesting the conduct or assignment in writing that the nurse is invoking Safe Harbor.

https://www.bon.texas.gov/pdfs/forms_pdfs/other/SafeHarborStatuteRuleWebsite.pdf

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This article explains Safe Harbor in New Mexico and Texas:

New Mexico's law was inspired by a Texas law. Texas took a slightly different approach to the problem. In Texas, a nurse may invoke safe harbor when the nurse believes he or she has been given an unsafe assignment by filling out a lengthy form, and a peer review committee at the facility must make a determination about the situation within 14 days. The nurse may take the assignment or perform the service during the 14-day period, unless the assignment is one that the nurse lacks the skills necessary to competently perform. The nurse who invokes safe harbor may not leave the work setting without collaborating with the supervisor. The facility may not retaliate against the nurse who invokes the safe harbor. The Texas law applies to employers of eight or more nurses. Like New Mexico's law, the Texas law allows a nurse to invoke safe harbor to question the medical reasonableness of a physician's order. A medical director or member of the medical staff must determine whether the order was reasonable.

Note that in Texas, Safe Harbor only applies to facilities that employ at least 8 nurses.

https://www.medscape.com/viewarticle/912200

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Specializes in Critical Care.
4 minutes ago, Horseshoe said:

(d) Invoking Safe Harbor. (1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times: (A) when the conduct is requested or assignment made; (B) when changes occur or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned

that a nurse believes in good faith that patient harm may result; or (C) when the nurse refuses to engage in the requested conduct or assignment. (2) The nurse must notify the supervisor requesting the conduct or assignment in writing that the nurse is invoking Safe Harbor.

https://www.bon.texas.gov/pdfs/forms_pdfs/other/SafeHarborStatuteRuleWebsite.pdf

It covers changes made to an assignment you've already accepted that the nurse believes might be unsafe, this is because once you've accepted the assignment you can't then refuse it without possibly being subject to patient abandonment. You can refuse an assignment prior to accepting it but you only have Safe Harbor protections in that case if the assignment would be likely to cause you to violate the NPA or Board rules.

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10 minutes ago, MunoRN said:

It covers changes made to an assignment you've already accepted that the nurse believes might be unsafe, this is because once you've accepted the assignment you can't then refuse it without possibly being subject to patient abandonment. You can refuse an assignment prior to accepting it but you only have Safe Harbor protections in that case if the assignment would be likely to cause you to violate the NPA or Board rules.

Muno, what the heck. It says right above that:

A) when the conduct is requested or assignment made;

Texas Safe Harbor law absolutely protects nurses who are given what they reasonably perceive to be an unsafe assignment.

That also includes being assigned to a unit or patient for care that they are not competent to provide. For example, a tele nurse is sent to SICU to take two fresh open hearts, something she has no familiarity with and as such presents a clear risk to patient safety.

Also from the BON:

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Safe Harbor Forms - Nursing Peer Review

The Texas Board of Nursing (BON or Board) has safe harbor nursing peer review forms available to make the process faster and easier for a nurse who believes he/she is being asked to accept an unsafe assignment, engage in conduct beyond his/her scope of practice, or engage in unprofessional or illegal conduct. The Board provides the following three forms which may be used as part of the safe harbor nursing peer review process. Safe harbor is a process between the nurse and the employer; please do not send these forms to the BON.

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

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I don't know how it could be made more clear:

Safe Harbor (SHPR), which may be initiated by a LVN, RN or APRN prior to accepting an assignment or engaging in requested conduct that the nurse believes would place patients at risk of harm, thus potentially causing the nurse to violate his/her duty to the patient(s). Invoking safe harbor in accordance with Rule 217.20 protects the nurse from licensure action by the BON as well as from retaliatory action by the employer.

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

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Specializes in Critical Care.
5 minutes ago, Horseshoe said:

Muno, what the heck. It says right above that:

A) when the conduct is requested or assignment made;

Texas Safe Harbor law absolutely protects nurses who are given what they reasonably perceive to be an unsafe assignment.

That also includes being assigned to a unit or patient for care that they are not competent to provide. For example, a tele nurse is sent to SICU to take two fresh open hearts, something she has no familiarity with and as such presents a clear risk to patient safety.

It's pretty clear, I think you're missing that the requirements to qualify for safe harbor prior to accepting an assignment are not the same as when the assignment has already been accepted.

Prior to accepting an assignment, the assignment or assigned task must fall into the defined circumstances, such as a violation of the NPA or being assigned responsibilities for which the nurse is not trained, it's not as broad as anything the nurse considers to be unsafe.

After the nurse has accepted an assignment the requirements to qualify for safe harbor are more broad, and can include any changes to the assignment that the nurse perceives as unsafe.

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(d) Invoking Safe Harbor. (1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times: (A) when the conduct is requested or assignment made; (B) when changes occur or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned that a nurse believes in good faith that patient harm may result; or (C) when the nurse refuses to engage in the requested conduct or assignment. (2) The nurse must notify the supervisor requesting the conduct or assignment in writing that the nurse is invoking Safe Harbor.

The part of the statute that says it can cover situations where the nurse believes patient harm may result in only included in the section related to changes to the assignment.

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Specializes in Critical Care.
4 minutes ago, Horseshoe said:

I don't know how it could be made more clear:

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

From the section of that specific to Safe Harbor:

"Safe Harbor is a nursing peer review process that a nurse may initiate when asked to engage in an assignment or conduct that the nurse believes in good faith would potentially result in a violation of Board Statutes or Rules."

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16 minutes ago, MunoRN said:

From the section of that specific to Safe Harbor:

"Safe Harbor is a nursing peer review process that a nurse may initiate when asked to engage in an assignment or conduct that the nurse believes in good faith would potentially result in a violation of Board Statutes or Rules."

What part of this are you not getting????

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Safe Harbor (SHPR), which may be initiated by a LVN, RN or APRN

prior to accepting an assignment or engaging in requested conduct that the nurse believes would place patients at risk of harm, thus potentially causing the nurse to violate his/her duty to the patient(s). Invoking safe harbor in accordance with Rule 217.20 protects the nurse from licensure action by the BON as well as from retaliatory action by the employer.

Nurses have the right to refuse to accept an unsafe assignment AT ANY TIME-when they arrive or any time during their shift. "I'm not sure why you are reading this as "okay, we are allowed to put the patients at risk when you get there, but during the middle of the shift it's not okay. "

Again the words of the BON "prior to accepting the assignment."

1) Safe Harbor must be invoked prior to engaging in the conduct or assignment and at any of the following times: (A) when the conduct is requested or assignment made; (B) when changes occur or assignment that so modify the level of nursing care or supervision required compared to what was originally requested or assigned

Safe harbor may be invoked when the assignment is made AND when changes are made to the assignment. It's there clear as day.

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Specializes in Critical Care.
7 minutes ago, Horseshoe said:

What part of this are you not getting????

Nurses have the right to refuse to accept an unsafe assignment AT ANY TIME-when they arrive or any time during their shift. "I'm not sure why you are reading this as "okay, we are allowed to put the patients at risk when you get there, but during the middle of the shift it's not okay. "

Again the words of the BON "prior to accepting the assignment."

It certainly would be nice if your interpretation was correct since that would essentially implement nurse to patient ratios since the staff nurses could be protected for only accepting a certain ratio, but that's not the case unfortunately.

The statute defines what "risk of harm" is. And while the nurse can certainly declare Safe Harbor at any time the conditions are different before and after the assignment has been accepted. The "duty to patients" is not broadly or liberally defined by the statute, prior to the assignment being accepted it must meet certain criteria to qualify as unsafe.

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