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Beware Texas Occupations Code retaliation

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in Employment Law,Firing,Human Resources

The Texas Occupations Code protects nurses who report practices that may “expose a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice …”

A nurse who makes such a report is protected from discipline because of that report. Discipline within 60 days is presumed to be retaliation. However, employers can rebut this presumption by showing the discipline was not related to the report.

Recent case: Gloria and Irma worked as registered nurses for Fresnius Medical Care for more than 20 years. They performed a specific kind of kidney dialysis called hemodialysis. The medical service directed them to travel to another state to teach a patient in his home how to perform home hemodialysis. They refused, explaining to their supervisor that they were not properly trained or prepared to undertake such an assignment.

The supervisor created a performance improvement plan for Gloria and Irma. One of the provisions required them to attend training sessions to learn the skills they claimed they didn’t have. The nurses delayed or refused to take the training opportunities and were fired for insubordination.

Because their termination came less than 60 days since they filed their internal complaint, the court said Fresnius Medical Care had to overcome the presumption that they were fired for making the report.

Fortunately for the company, the court believed its explanation that the nurses really had been terminated for refusing to comply with the training requirement, not because they refused to train the patient in home dialysis. Because the employer had a separate, unrelated reason for termination, the court concluded there had been no retaliation. (Almeida, et al. v. Bio-Medical Applications of Texas, WD TX, 2017)

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