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Fired for saying i might file safe harbor

Nurses   (7,009 Views 62 Comments)

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Nurse SMS has 8 years experience as a MSN, RN and specializes in Critical Care; Cardiac; Professional Development.

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It bears noting that not only is the "threat" of filing Safe Harbor at issue here. There are intangibles, such as HOW it was threatened, in what tone, in what situation and in front of whom (patients? Other employees? In public? In private? Raised voice? Threatening words or gestures? Any swear words used? Any semblance of incivility?). These are all items that easily satisfy an at-will employment termination.

I doubt very much in Texas that the OP has a leg to stand on.

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Texas Administrative Law clearly states you cannot be terminated for calling Safe Harbor either verbally or through electronic form. This is legally actionable. Contact an attorney since statute for filing retaliation or wrongful termination claim is very short. 

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Hoosier_RN has 20 years experience as a MSN and specializes in LTC, home health, hospice, ICU, ER, dialysis.

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2 hours ago, Horseshoe said:

Even in an at-will state, employers can’t actually fire you for absolutely anything

No, but they can usually 'find' a 'valid' reason if they want you gone bad enough

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That may be true  The Legislator law makers specifically built protections into the law regarding Safe Harbor to not permit this, Retaliatory law also provids civil remedies

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Also it is not a threat but the standard of care and expectation of nurse by Board,

There are no exclusions in SH law about how it was called such as tone  Please do not discourage nurses from calling SH

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Also, this nurse should report thr nurse Administrators who made this comment and terminated nurse, It is a violation of Board rules and regs worthy of investigation

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Safe harbor is Texas and like one other state right? Can’t remember which. But, if you’re in an at will state? Probably no. I don’t think claiming safe harbor makes you a protected class or a whistleblower, so not sure there are any special protections. Plus you’d have to prove she said it. 

 

*what i mean is, you won’t be entitled to the protections of safe harbor because you didn’t actually file for safe harbor. When it comes to that, you either need to follow through or say nothing. You cannot get the protection of a law you didn’t invoke. There was no true retaliation because you never invoked SH.  

 

Your best bet is to call a lawyer who specializes in employment and get a consult. My gut says it’s not going to matter, but I’m not a lawyer. You should get an answer from one of them. 

Edited by NurseCocoBSN

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Nurse SMS has 8 years experience as a MSN, RN and specializes in Critical Care; Cardiac; Professional Development.

4 Followers; 6,043 Posts; 47,879 Profile Views

On 10/21/2019 at 4:30 PM, guest7/31/17 said:

Texas Administrative Law clearly states you cannot be terminated for calling Safe Harbor either verbally or through electronic form. This is legally actionable. Contact an attorney since statute for filing retaliation or wrongful termination claim is very short. 

They didn't call SH. They threatened to call SH. There is a legal difference I think.

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TriciaJ has 38 years experience as a RN and specializes in Psych, Corrections, Med-Surg, Ambulatory.

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On 10/18/2019 at 12:42 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.

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.

My understanding of Safe Harbour is that you are accepting the assignment under protest.  I'm not familiar with "Safe Harbour" per se;  I'm more familiar with the unsafe staffing documentation forms, provided by my union.  That form states that I am accepting the assignment under protest, because I believe the staffing levels to be unsafe.  It goes further to state that I will do the best that I can, but will not accept full responsibility for the outcome.

It is correct that it protects your license rather than your job, but any subsequent negative feedback or discipline from your employer than now be construed as retaliation.

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Some of the advice here is really misleading.  First off Safe Harbor (if in Tx.) Is law. Protections under safe harbor are also law.

) TOC §303.005(c) and (h) (NPR Law) and §301.352 provide the following protections:    (A) A nurse may not be suspended, terminated, or otherwise disciplined, retaliated, or discriminated against for requesting safe harbor in good faith. And

mination.    (C) A nurse is not subject to being reported to the Board and may not be disciplined by the Board for engaging in the conduct awaiting the determination of the nursing peer review committee as permitted by subsection (g) of this section. A nurse's protections from disciplinary action by the Board for engaging in the conduct or assignment awaiting nursing peer review determination remain in place for 48 hours after the nurse is advised of the nursing peer review committee's determination. This time limitation does not affect the nurse's protections from retaliation by the facility, agency, entity or employer under TOC §303.005(h)(NPR Law) for requesting safe harbor.  (3) If retaliation occurs, TOC §301.413 (NPA) provides a nurse the right to file civil suit to recover damages. 

Safe Harbor can now be called verbally. It is NOT insubordination. You in fact have a duty to call SH if pts at risk of harm and BON can and does discipline for failures to call SH. Even in Tx a right to work state, you are protected against retaliation. 

Statute of limitations in Tx do not exceed 90 days for filing of civil suit.

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5 hours ago, TriciaJ said:

My understanding of Safe Harbour is that you are accepting the assignment under protest.  I'm not familiar with "Safe Harbour" per se;  I'm more familiar with the unsafe staffing documentation forms, provided by my union.  That form states that I am accepting the assignment under protest, because I believe the staffing levels to be unsafe.  It goes further to state that I will do the best that I can, but will not accept full responsibility for the outcome.

It is correct that it protects your license rather than your job, but any subsequent negative feedback or discipline from your employer than now be construed as retaliation.

Yes, I think that is correct. But the usual consequence of filing Safe Harbor is that it makes the facility re-think following through with the assignment because now there is documentation of potential unsafe practices on their part. When I've seen this done, there is always a pow wow of house supervisor and nurse manager, etc., trying to work out a solution.

It specifically states the employer cannot retaliate in any way or they are legally exposed to a civil lawsuit by the nurse.

Also, invoking Safe Harbor does not protect the nurse from a civil suit filed by patients or families for any adverse outcomes that result from taking that assignment under protest. It just protects the nurse from board action and employer retaliation.

Edited by Horseshoe

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In Texas it must be remembered that Safe Harbor (SH), is legislated law. SH as the law reads does protect your job in so far as it is a violation of the law to "retaliate." Any Nurse Administrators who permit or are aware/have reason to know of the retaliation, can then be said to have violated the NPA and TAC. 

That said retaliation or not the Board has no history of advocating for nurses who have been retaliated against in anyway let alone for calling SH. I have also seen several cases where the Board used failing to call SH as a way to excuse mitigating circumstances such as insufficient staffing and unsafe conditions that lead to such as failure to rescue.

There is no mechanism within SH law to permit remedy for retaliatory termination. The law does state the nurse may seek civil remedy. In Texas however. the statute of limitations runs in 90 days. Filing a lawsuit, however , does not get the nurse their job back. In the end it is a risk for nurses to file SH because employers will get away with using it to retaliate. Yet, the Board hold the nurse accountable to call SH. 

As usual the nurse is in a no win situation. And without support or advocacy.

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