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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN JENNIFER M. GRANHOLM, ATTORNEY GENERAL HOSPITALS: NURSES: PUBLIC HEALTH: Nurse�s refusal to work overtime as grounds for discipline under Public
Health Code A nurse�s refusal of an employer�s demand to work overtime does not, in
and of itself, constitute grounds for discipline under the Public Health Code. Opinion No. 7084 June 19, 2001 Honorable Bob Emerson You have asked whether a nurse�s refusal of an employer�s demand to work
overtime, in and of itself, constitutes grounds for discipline under the Public
Health Code. Information supplied with your request suggests a shortage of nurses over the
last several years has prompted health care facilities to require licensed
nurses to work overtime. The Public Health Code (Code), 1978 PA 368, MCL 333.1101 et seq; MSA
14.15(1101) et seq, grants the Michigan Department of Consumer and
Industry Services (DCIS) and the various health professional boards, including
the Michigan Board of Nursing, the authority to license and to regulate health
professionals. This authority includes the ability to take disciplinary action
against licensed health care professionals based upon violations of a general
duty, personal disqualifications, unethical business practices, unprofessional
conduct, and other specific categories. Section 16221. The DCIS and the health professionals boards do not have broad common law
powers and are not authorized to commence disciplinary action if the alleged
misconduct is unrelated to professional competence or other specific violations
of the Public Health Code. "Their powers are limited by the statutes
creating them to those conferred expressly or by necessary or fair
implication." Coffman v State Bd of Examiners in Optometry, 331 Mich
582, 590; 50 NW2d 322 (1951). (Quoting 42 Am Jur, � 26, p 316.) Section 16221(a) of the Code authorizes discipline of health care
professionals for "negligence or failure to exercise due care, . . . or any
conduct, practice, or condition which impairs, or may impair, the ability to
safely and skillfully practice the health profession." Nothing in section
16221, or any other section of the Code, specifically requires a nurse to comply
with an employer�s demand to work overtime, or renders the refusal of such
demand, in and of itself, a violation of the Code. There is no reported Michigan
case law addressing mandatory overtime in the context of a health professional�s
license. Each case, however, must be evaluated on its own merits to determine if
a health professional�s conduct "in the crucial and exacting matter of
health care," Burns v Bd of Nursing, 495 NW2d 698, 700 (Iowa, 1993),
falls below the required standard of care. For example, in Husher v Comm�r of Education of the State of New York,
188 AD2d 739; 591 NYS2d 99 (1992), the court upheld disciplinary action against
the license of a registered nurse who was required by her employer to work
overtime. There the nurse did not refuse to work overtime; in fact she agreed,
but suddenly left her work area 45 minutes after her overtime began, leaving 29
seriously ill patients in the hands of aides, orderlies and a respiratory
therapist. In upholding a one-year suspension of the nurse�s license, the
court found that the nurse knew there was a nursing shortage, agreed to stay
until properly relieved, gave assurances she would stay for several hours, yet
suddenly left her unit without proper nursing coverage, thus providing her
supervisor with little or no opportunity to obtain a replacement. Under these
facts, an appellate division of the New York Supreme Court concluded that the
nurse abandoned her professional employment with the hospital and practiced her
profession with gross negligence, seriously impairing the delivery of
professional care to patients. Similar facts, depending on the specific circumstances, could prompt the
Michigan Nursing Board to find negligence or failure to exercise due care
sufficient to warrant discipline under the Public Health Code. Of course, such
factual determinations must be made on a case-by-case basis. A nurse�s refusal
of an employer�s demand that he or she work overtime, however, does not by
itself constitute a violation of the Code. It is my opinion, therefore, that a nurse�s refusal of an employer�s
demand to work overtime does not, in and of itself, constitute grounds for
discipline under the Public Health Code. JENNIFER M. GRANHOLM |