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I was let go from a job because of unsatisfactory job performance. How can I protect my license and determine whether my termination was fair?

Friday January 18, 2013
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Question:

Dear Nancy,
I was let go from a job I absolutely loved and had been at for less than a year. The termination letter cited unsatisfactory job performance. It was implied that I gave a report on the same patient twice and I appeared drowsy. Also, a patient reported I appeared drowsy and nodded off while I was preparing to start an IV and the patient had to nudge me awake. Co-workers reported I had slow speech on two consecutive days, and I was told that there had been reports of me being impaired on duty on the second day. I explained that over the previous 5-day period, I worked several very long shifts and spent a night in the hospital with my grandmother. I wanted to call in the next day, but was told I had to be there. So, exhausted and sleep deprived, I came in for a 12-hour shift. I volunteered for a drug screen and was completely alert, but I admitted I had been very sleepy the first couple of hours of that shift. I asked her if I appeared impaired and she said not at that time. I was taken to the lab for blood and urine collection and was suspended pending investigation. I was called back nine days later and terminated. They told me I was let go due to my job performance and not my drug screen. I do take prescribed medications for sleep, ADD and migraines, but had not taken anything of these prior to going to work on the days in question. I had taken my medications for sleep each night. I was not allowed to see the results of my drug screen or personnel file. I do not agree with all the information included in my termination letter. They told me that because of the patient safety issue, I would be reported to the board of nursing. I had never been reprimanded for anything like this in the past, and feel like none of the circumstances were acknowledged.

I need advice about what to do to protect my license and if my termination was fair. If they thought I had a drug problem, the hospital has a program for nurses, but that was never mentioned. They implied in the letter that I was chemically impaired, but then said I was not being fired because of the drug test. I have been a nurse for 20 years. I am very scared and lost. What should I do?

Jennifer



Nancy Brent replies:

Dear Jennifer,

Because it appears that there may be allegations that you were chemically impaired while at work and the fact that you have been reported to the board of nursing, you will need to retain a nurse attorney or attorney in your state who works with healthcare providers in disciplinary proceedings. It will be vital to tell the attorney you select about the drug screening, how it was collected, whether you gave information about any medications to the person who took the sample and that you were not given a copy of the results. In addition, you were not allowed to see your personnel file, which may be due to the fact that your state does not provide you with this right, but do remember to share this with the attorney.

Your situation does raise an important fact for you to consider it is your responsibility to know when you are able to work, physically and mentally, and when you cannot. Just reading your question raises the concern of how tired you must have been. Even with the threat or veiled threat of getting fired if you don't come in, it is no excuse to work when impaired due to lack of sleep and/or stress.

You must answer now to the allegations raised by your employer. Had a patient been injured during this time period, it would be difficult to defend yourself by saying you felt pressured to work while being fatigued. In short, it is easier to deal with a termination that is unfair, rather than dealing with a termination that results in a report to the board of nursing. You can find a nurse attorney or attorney by contacting the local state bar association's lawyer referral service. In addition, The American Association of Nurse Attorneys has a lawyer referral service on its website, www.taana.org. If you have your own professional liability insurance policy that provides coverage and an attorney for professional discipline proceedings, contact the insurance agent right away so your representation can begin as soon as possible.

Regards,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.