Create an ethical code of conduct for those in governance, management, and professional staff for any one of these health care organization: ???Ou
Create an ethical code of conduct for those in governance, management, and professional staff for any one of these health care organization: Out-Patient Center
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- Brief background of the facility.
- Organization structure of the facility and duties/ responsibilities of those in management and professional staff.
- Two possible ethical dilemmas that may be encountered.
- Ethical standards for those in governance, management, and professional staff.
- Ways to implement the ethical code of conduct and ensure compliance.
- Consequences if there is a violation of the code of ethics
22
Employee Rights and Responsibilities
© Andrey Burmakin/Shutterstock
Man never fastened one end of a chain around the neck of his brother that God did not fasten the other end round the neck of the oppressor.
—Lamartine (1790–1869)
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Describe and understand the rights of employees.
• Describe and understand the responsibilities of employees.
• Describe the contents of the caregiver’s pledge as presented here.
This chapter presents an overview of the rights and responsibilities of employees in the healthcare setting, many of which are expressed in both federal and state laws. Healthcare organizations are not exempt from the impact of these laws and are required to take into account employment practices, such as wages, hours, working conditions, union activity, workers’ compensation laws, occupational safety and health laws, and employment
discrimination laws.
22.1 EMPLOYEE RIGHTS
Employment at will does not abrogate employee rights. Employees have faced discrimination involving age, race, creed, color, gender, wages, benefits, wrongful termination, as well as a host of other common labor issues. A variety of federal and state laws protect employee rights to be treated fairly in the workplace. The following listing describes but a few of the rights and responsibilities of employees in the workplace. As this chapter reveals, fairly balancing the rights and responsibilities of the employee and employer is not always an easy task.
Equal Pay for Equal Work
The Equal Pay Act (EPA) of 1963 prohibits gender discrimination in the payment of wages for women and men performing substantially equal work in the same establishment and requires that employees who perform equal work receive equal pay. There are situations in which wages may be unequal as long as they are based on factors other than gender, such as in the case of a formalized seniority system or a system that objectively measures earnings by the quantity or quality of production.
Refuse to Participate in Care
Caregivers have a right to refuse to participate in certain aspects of patient care and treatment. This can occur when there is conflict with one’s cultural, ethical, and/or religious beliefs, such as the administration of blood or blood products, participation in elective abortions, and end-of-life issues such as disconnecting a respirator. Questionable requests not to participate in certain aspects of a patient’s care should be referred to an organization’s ethics committee for review and consultative advice.
Some pharmacists’ religious beliefs prohibit abortion or the use of birth control. They believe that dispensing such medications to others is an infringement on their freedom of religion. There are others who believe that pharmacists have an obligation to fill all prescriptions, and that refusing to fill them violates the patients’ freedom of conscience. The First Amendment protects individual free exercise of religion. The question here is “Does requiring pharmacists to fill prescriptions conflict with religious beliefs and violate their rights under the First Amendment?” Some say yes, because people whose religious beliefs prohibit birth control or abortion cannot freely exercise their religion if they are forced to dispense these medications. Others say no, because the patients’ need to obtain their medication outweighs the pharmacists’ rights.1
Some states have subsequently proposed legislation and passed laws designed to allow doctors and other direct providers of health care to refuse to perform or assist in an abortion, and hospitals to refuse to allow abortion on their premises. Now, the issue is expanding as pharmacists are refusing to fill emergency contraception and contraception prescriptions.2
As each state often has different rulings on this issue, the reader should review applicable state statutes.
Balancing Employee and Patient Rights
In the attempt to honor staff rights, a patient’s health must not be compromised. The New York Supreme Court, Appellate Division in Larson v. Albany Medical Center held that although a nurse has the right to refuse to participate in an elective termination of pregnancy on grounds of freedom from religious discrimination in employment, the case at issue did not involve an elective procedure. The mother was in need of emergency care and the nurses were asked by their nursing supervisor to assist in an “emergency” evacuation of a dead fetus. The nurses launched an argument about elective abortions and the court ruled their action as insubordinate behavior.3
In a Missouri case, Doe v. Poelker,4 the city was ordered to obtain the services of physicians and personnel who had no moral objections to participating in abortions. The city also was required to pay the plaintiff’s attorneys’ fees because of the wanton disregard of the indigent woman’s rights and the continuation of a policy to disregard and/or circumvent the U.S. Supreme Court’s rulings on abortion.
Question Patient Care
A caregiver has the right to question the care being rendered to a patient by another caregiver if there is reason to believe that the care is likely to be detrimental to the well-being of the patient. If, for example, a caregiver believes that a particular order appears to be questionable, the caregiver has the responsibility to seek verification from the prescribing physician. If the prescribing physician believes the order to be correct and the caregiver still questions the order, the concern must be relayed to the employee’s supervisor for verification and further follow-up if necessary.
Suggest Changing Physician
There are circumstances in which a caregiver has a right to suggest that a patient or patient’s family change their physician. In one case, a patient began losing weight and having hallucinations. A nurse documented the patient’s difficulties and attempted on several occasions to call the patient’s physician. The physician failed to return the nurse’s calls. Because of the patient’s deteriorating condition, the family contacted the nurse. After the nurse advised the patient’s family about her concerns, a member of the patient’s family asked her what they should do. The nurse advised that she would reconsider their “choice of physicians.” The nurse was terminated because she had advised the patient’s family to consider changing physicians.
The nurse brought a lawsuit for wrongful discharge in violation of public policy. The language in the Nursing Practice Act of North Carolina and regulations of the Board of Nursing describe the practice of nursing as assessing a patient’s health, which entails a responsibility to communicate, counsel, and provide accurate guidance to clients and their families. The nurse’s comments that resulted in her termination were made in fulfillment of these responsibilities.
The North Carolina Court of Appeals held that the nurse stated a claim for wrongful discharge in violation of public policy. The nurse’s termination for fulfilling her responsibilities as a practicing nurse violated state public policy and was a factual question for jury determination. Although there may be a right to terminate at-will employment for no reason or for an arbitrary or irrational reason, there can be no right to terminate such employment for an unlawful reason or purpose that contravenes public policy.5
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PAVING HER WAY TO HEAVEN |
Citation: Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617 (Mo. Ct. App. 1993)
Facts
A short time after a patient had been admitted to Mercy Hospital, Kirk, the charge nurse, determined the patient was suffering from toxic shock syndrome. Knowing that death would result if left untreated, Kirk assumed the physician would order antibiotics. After a period of time passed without having received such orders, Kirk discussed the patient’s condition with the nursing director. The director asked Kirk to document, report the facts, and “stay out of it.”
Kirk discussed the patient’s condition and lack of orders with the chief of staff. Although the chief of staff took appropriate steps to treat the patient, the patient later died. A member of the patient’s family informed the nursing director that Kirk offered to obtain a copy of the medical records. The director was later told that Kirk was heard to say that the physician was “paving the patient’s way to heaven.” Kirk was later terminated. After her termination, Kirk received a letter from the hospital that directed her to refrain from making any further false statements about the hospital and its staff. Kirk then filed a lawsuit.
The trial court entered a summary judgment for the defendant-hospital, stating that there were no triable issues of fact and there was no public policy exception to Kirk’s at-will termination. The court could not find any law or regulation prohibiting the hospital from discharging Kirk, who later appealed the court’s decision.
Issue
Was there a public policy exception to the Missouri employment-at-will doctrine?
Holding
The Missouri Court of Appeals reversed the granting of summary judgment and remanded the case for trial, holding that the Nursing Practice Act (NPA) provided a clear mandate of public policy that nurses had a duty to provide the best possible care to patients.
Reason
Public policy clearly mandates nurses have an obligation to serve the best interests of patients. Therefore, if Kirk refused to follow her supervisor’s orders to stay out of a case where the patient was dying from a lack of proper medical treatment, there would be no grounds for her discharge under the public policy exception to the employment-at-will doctrine. Pursuant to the NPA, the plaintiff risked discipline if she ignored improper treatment of the patient. Kirk’s persistence in attempting to get the proper treatment for the patient was her absolute duty. The hospital could not lawfully require that Kirk stay out of a case that would have obvious injurious consequences to the patient. Public policy, as defined in case law, holds that no one can lawfully do that which tends to be injurious to the public or against the public good.
Discussion
1. Discuss any concerns you have, knowing that Kirk offered to obtain a copy of the patient’s records for the family.
2. What was the public policy mandate in this case?
Freedom from Sexual Harassment
Employees and staff have a right to be free from sexual harassment. Sexual harassment can be verbal or physical, and it includes a request for a sexual favor, sexual advances made as a condition of employment and unreasonably interfering with an employee’s work performance, and creating an intimidating or offensive working environment. In 1980, the Equal Employment. Opportunity Commission (EEOC) issued landmark sexual harassment guidelines that prohibit unwelcome sexual advances or requests that are made as a condition of employment. The guidelines also prohibit conduct that creates a hostile work environment. The U.S. Supreme Court held that a hostile work environment refers not only to conduct that is psychologically injurious, but also to conduct that is perceived as abusive.
Treated with Dignity and Respect
One’s dignity may be assaulted, vandalized, and cruelly mocked, but it cannot be taken away unless it is surrendered.
—Author Unknown
Each employee has the right to be treated with dignity, respect, and in a fair and consistent manner by his or her employer. Employers have a responsibility to pay attention to employees’ expressions, complaints, and concerns regarding their rights and entitlements. Furthermore, employers should respond promptly to all employees’ questions, especially when employees are working away from the corporate site, as noted in the following reality check.
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Call for Additional Help—No Response |
Three consultants were assigned by their employer, International Consulting (IC), to review the quality of care being delivered at Newtown Medical Center in Boston. Newtown was larger and more complex than the consultants were expecting. In addition, it was located in a different state than IC’s headquarters. On the first day of the consulting assignment, the IC’s consulting team leader called the IC corporate office to discuss the need for additional help, as required by corporate policy. The manager responsible for addressing field requests did not respond. Despite the lack of a follow-up call from the corporate manager, the team covered the assigned task. Newtown’s leadership expressed their appreciation to the consultants by writing to IC’s CEO, expressing their appreciation for how well the consultants conducted their work.
Discussion
1. Describe what actions could be taken to improve scheduling.
2. Discuss the training opportunities for corporate managers responsible for providing support for field consultants.
Whistleblowing
Employees have both a right and responsibility to report unethical conduct. Whistleblowing has been defined as an act of someone “who, believing that the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent, or harmful activity.”6
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The Price Whistle-Blowers Pay for Secrets |
“It’s a life-changing experience,” said John R. Phillips, founder of the law firm Phillips & Cohen and the man credited with devising the amendments that strengthened the government antifraud law, the False Claims Act, in 1986.“If you look at the field of whistle-blowers, you see a high degree of bankruptcies. You may find yourself unemployable. Home foreclosures, divorce, suicide and depression all go with this territory.”
—Paul Sullivan, The New York Times, September 21, 2012
Given the concern of the public about ethical behavior in government, the strong policy statement of the legislature in enacting the whistle-blower statute and the explicit inclusion of the state within its reach, the Whistleblower Act operates as an implied waiver of the statutory immunity provision of Minn. Stat. A4 3.736. A decision to shield potential government wrongdoing, as urged by the state, would exacerbate public cynicism about the ethics of public officials, and this we do not choose to do.7
Healthcare organizations often describe their whistle-blower policy in their compliance manuals. Compliance officers are responsible for providing information to employees regarding the organization’s compliance program. The policies provide reporting procedures that ensure anonymity for employees through, for example, the use of phone hotlines answered by third parties not affiliated with the organization. Organizations must not retaliate against an employee for disclosing activities that he or she reasonably believes are in violation of public policy, such as fraudulent billing practices. The Occupational Safety and Health Act’s (OSHA’s) Whistleblower Protection program, for example,
enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.8
Freedom from Intimidation
Employees have a right to be free from intimidation by angry individuals and veiled threats by managers in the workplace. Employees have a right to be protected from the abuse of others whether they are managers, coworkers, or independent contractors such as physicians.
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Hospitals Crack Down On Tirades By Angry Doctors |
At a critical point in a complex abdominal operation, a surgeon was handed a device that didn’t work because it had been loaded incorrectly … the surgeon slammed it down, accidentally breaking the technician’s finger …
The 2011 incident illuminates a long–festering problem that many hospitals have been reluctant to address: disruptive and often angry behavior by doctors. Experts estimate that 3 to 5 percent of physicians engage in such behavior, berating nurses who call them in the middle of the night about a patient … demeaning co-workers they consider incompetent or cutting off patients who ask a lot of questions.
—Sandra G. Boodman, The Huffington Post, March 5, 2013
Privacy and Confidentiality
Employees have a right to privacy and confidentiality in regards to information about their health status. However, modern technology makes it possible for employers to monitor their employees’ activities through their computer site visits, electronic emails, voicemail, and video monitoring. Such monitoring is generally unregulated, and unless an organization’s policy specifically states otherwise, the employer may listen to, watch, and read an employee’s workplace communications. Employee rights of
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