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
State Senator
The Capitol
Lansing, Michigan 48913

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
Attorney General