Nurses have both ethical and professional obligations to report unsafe workplace conditions that could endanger patients, coworkers, or themselves. While many employers respond appropriately to these concerns, some nurses worry about retaliation after speaking up. A recent Illinois appellate court case highlights how claims of retaliatory discharge can arise when a nurse reports safety concerns and later loses employment.
Key takeaways
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Reporting workplace safety concerns often leads to improvements that protect nurses, coworkers, and patients. However, after voicing concerns, if you or a fellow nurse is terminated, or another adverse employment action occurs, without any prior or current reason to support that result, the question arises whether the basis of that decision was retaliation.
What is retaliatory discharge?
Retaliatory discharge occurs when an employer terminates an employee because they engaged in a protected activity, such as reporting unsafe workplace conditions, patient safety concerns, or violations of law.
This is an important legal tool for nurses and other healthcare professionals who voice their concerns to their employers about unsafe workplace situations and who then experience an unwanted employment change.
In the following Illinois case, a nurse’s complaint to his employer about an “inadequate supply” of sterile gloves when providing care to nursing home residents and his subsequent employment termination were evaluated by the state’s appellate court.
How a nurse's safety complaints led to a termination dispute
The nurse was employed at a nursing and rehabilitation facility where his position included caring for and providing treatment for the patients and residents. According to the lawsuit, the employer allegedly failed “at times” to provide the nurse with an appropriate supply of sterile gloves when caring for patients and residents.
The nurse reported that he continuously notified his employer about the lack of gloves and also complained about working with and treating residents without sterile gloves.
Even so, the nurse’s complaints were reportedly ignored or downplayed by his employer. Shortly after repeatedly raising his concerns, the nurse was terminated without a clear explanation.
Can a nurse sue after being fired for reporting workplace safety concerns?
The nurse’s complaint against his employer was amended several times. In his fifth amended complaint, the nurse argued that his termination violated a clear mandate of public policy, a required element of a retaliatory discharge claim. To support this argument, he identified three public policies that he believed were implicated in his termination, which were:
- The state had a clearly mandated public policy requiring healthcare facilities to “properly manage and ensure” PPE was available in healthcare settings.
- The state had a clearly mandated public policy that forbade employers from terminating any employee who complained of an occupational health hazard or that prevented an employee from reporting a hazard.
- The state had a clearly mandated policy that required employers to provide employees with sterile gloves and other PPE to prevent the spread of blood-borne illnesses.
The basis of these state prohibitions was the Occupational Safety and Health Administration (OSHA)'s Rule that applied to all job-related exposure to blood or other potentially infectious materials.
The nurse also alleged that his termination was a result of his complaints about the lack of sterile gloves and other PPE and that his termination was a violation of clearly mandated state public policy.
The employer filed a Motion to Dismiss the fifth complaint for failure to state a cause of action and that sanctions be imposed on the nurse for filing a frivolous complaint.
The nurse filed a response opposing the Motion and the request for sanctions, and the employer filed a reply.
A hearing was held on the motion, and the court granted the employer’s motion and dismissed the complaint without prejudice (meaning it could be filed again). This would allow the nurse to file a sixth amended complaint if he paid a large sum of money as a sanction to the employer’s attorneys for representation during the lawsuit.
The nurse refused that offer and relied on the fifth complaint. So the trial court changed its dismissal of the complaint without prejudice to one with prejudice (meaning it couldn’t be filed again).
The nurse appealed that decision.
How the appellate court evaluated the nurse's retaliation claim
The appellate court carefully reviewed the applicable state and federal law and the pleadings and hearing testimony in the trial court.
The court acknowledged that Illinois is an at-will employment state, meaning that generally an employer may terminate a noncontracted employee’s employment for “any reason or no reason at all.”
However, an exception to this rule may apply when an employee brings a retaliatory discharge claim and can establish the following three elements:
- The employer discharged the employee.
- The discharge was in retaliation for the employees’ activities.
- The discharge violated a clear mandate of public policy.
In this case, the third element was noted as the one at issue.
The appellate court determined that the nurse had adequately alleged that his termination violated a clear public policy, allowing the claim to move forward. The employer alleged that the glove shortage wasn’t specific enough to support public policy concerns.
In terms of the employer's response, the appellate court disagreed, stating that the nurse’s complaint was sufficient to withstand such an argument because he had “continuous concerns and complaints” and notified his employer of those.
The appellate court reversed the judgment of the trial court and remanded the case for further proceedings on the nurse’s fifth amended complaint.
Practical steps nurses can take
This case highlights the legal and ethical importance of reporting nursing practice and workplace safety concerns to your employer. Although the litigation isn’t yet complete, the nurse's repeated efforts to raise concerns about the lack of sterile gloves were sufficient to allow his retaliatory discharge claim to move forward and undergo further review by the court.
In cases like this, it's critical to obtain legal representation, especially when pursuing a complex employment claim. Attempting to navigate this type of dispute without legal counsel can place a nurse at a significant disadvantage. Knowledge of the ins and outs of both state and federal law relating to any case is essential, and that isn’t an easy task for someone who isn’t an attorney.
The nurse clearly helped his case by continuing to notify his employer of his concerns about providing care without sterile gloves. His example is an important one — don’t give up if you have concerns for your safety, the safety of your colleagues, and the safety of those you care for.
Why personal documentation matters
If you find yourself in a situation that compromises your safety and that of those with whom you work and provide care, reiterate your concerns. Keep a confidential diary documenting their communication.
Be sure to document:
- Time
- Place
- Manner
- To whom
- Any response
However, take this documentation and seek legal advice as soon as possible about how to move forward with them.
Remember, too, that both state and federal laws may support your concerns. The state employment statutes supported the nurse as to his retaliatory complaint, and the federal OSHA rule on Bloodborne Pathogens supported the violation of his right to a safe work environment.
Frequently asked questions about nurse retaliation claims
Can a nurse be fired for reporting unsafe working conditions?
Employers generally cannot legally terminate a nurse solely for reporting workplace safety concerns that are protected by state or federal law.
What is retaliatory discharge?
Retaliatory discharge occurs when an employee is terminated because they engaged in a protected activity, such as reporting unsafe conditions or violations of law.
What documentation should nurses keep?
Nurses should document dates, times, individuals involved, conversations, emails, incident reports, and employer responses.
