The Texas Board of Nursing (Board or BON) also has a Frequently Asked Question concerning When Does a Nurse’s Duty to a Patient Begin and End? The Board has disciplined nurses in the past for issues surrounding the concept of abandonment related to a breach of the nurse’s duty to the patient. According to Board rules, all nurses must notify the appropriate supervisor when leaving a nursing assignment [Board Rule 217.11 (1)(I)], and leaving a nursing assignment without notifying the appropriate personnel is unprofessional conduct [Board Rule 217.12 (12)]. Further, all nurses must “know and conform to the Texas Nursing Practice Act and the Board’s rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse’s current area of nursing practice” [Board Rule 217.11 (1)(A)]. This means, to fully comply with Board Rule 217.11(1)(A), nurses need to determine if there are any other laws, rules, or regulations that apply to work hours or mandatory overtime from other regulators beyond the Board, i.e., regulators of the practice setting. For example, nurses working in the hospital setting should be aware of Chapter 258 of the Health and Safety Code which states that hospitals may not require a nurse to work mandatory overtime, and a nurse may refuse to work mandatory overtime in hospitals.
Following the 81st Texas Legislative Session in 2009, Section 301.356, Refusal of Mandatory Overtime, was added to the Texas Nursing Practice Act (NPA). NPA Section 301.356 references Chapter 258 of the Health and Safety Code which states that hospitals may not require a nurse to work mandatory overtime, and a nurse may refuse to work mandatory overtime in that setting. “Mandatory overtime” means a requirement that a nurse work hours or days that are in addition to the hours or days scheduled [Texas Health and Safety Code §258.002] and does not pertain to situations when a nurse’s relief does not arrive on time following his or her scheduled shift. Note that the prohibition of mandatory overtime does not apply if:
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- A healthcare disaster that increases the need for healthcare peronnel;
- A federal, state, or county declaration of emergency is in effect in the county in which the nurse is employed or is in effect in a contiguous county;
- There is an unforeseen emergency or unforeseen event of a kind that does not regularly occur, increases the need for healthcare personnel and count not be anticipated by the hospital; or
- The nurse is actively engaged in an ongoing medical procedure and the continued presence of the nurse through the completion of the procedure is necessary to ensure patient health and safety.
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If the hospital determines that an exception to the prohibition of mandatory overtime exists, the hospital shall, to the extent possible, make a good faith effort to meet staffing needs through voluntary overtime [Texas Health and Safety Code §258.004].
NPA Section 301.356 makes it clear that hospital nurses refusing to work mandatory overtime does not constitute patient abandonment or neglect. Thus, refusal by a nurse to work mandatory overtime in the hospital setting is not a violation of the nurse’s duty to his or her patients that could result in disciplinary action from the BON. Additionally, nurses who refuse to work overtime, as authorized in Senate Bill 476 from the 81st Legislative Session, may be able to invoke protections against employer retaliation as outlined in NPA Section 301.352, Protection for Refusal to Engage in Certain Conduct. A hospital may however require a nurse to work mandatory overtime in disaster and emergency situations [Texas Health and Safety Code §258.004]. Nurses who practice in hospital settings may wish to contact the Texas Health and Human Services Commission (HHSC), the agency with regulatory authority over , at (512) 834-6648 for specific guidance related to the regulations for the official nurse staffing policy and plan required by SB 476 to be created by the governing body of a hospital.
While the BON does not have authority in employment situations, there are protections in both the NPA and Board Rule 217.20, Safe Harbor Nursing Peer Review and Whistleblower Protections, for a nurse who invokes safe harbor in good faith because he or she believes acceptance of the assignment, e.g., additional work hours/overtime, may result in a breach of the nurse’s duty to a patient(s) and be a violation of the NPA or Board rules. Also, Section 258.005 of the Texas Health and Safety Code prevents a hospital from suspending, terminating, or otherwise disciplining or discriminating against a nurse who refuses to work mandatory overtime. If adverse employment action was taken against a nurse for refusing to work mandatory overtime or invoking safe harbor in good faith, then the nurse may choose to seek private legal counsel. If a nurse has reason to believe that a facility is failing to abide by the regulatory requirements applicable to that facility and is therefore jeopardizing patient safety, e.g., unsafe work hours for nurses, the nurse may make an optional written report to the appropriate licensing board or accrediting body as addressed by NPA Section 301.4025, Optional Report by Nurse. For example, the Texas Health and Human Services Commission has authority over.
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