Can Nurses Refuse to Cooperate in a Fitness for Duty Test

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Fitness for duty tests are a common requirement for dangerous or very physical occupations. Soldiers, police officers, and firefighters are typically the first occupations that come to mind in this category. But physicians and nurses are also often required to pass a physical exam when hired and, increasingly, are subject to ongoing assessments beyond this initial test. More and more, hospitals and other medical facilities are concerned about mental, emotional, or cognitive impairment in their staff. While requirements vary from state to state and even between facilities, “fitness for duty” has come to stand for a range of potential physical and mental health concerns, from sleep deprivation to substance abuse to depression and decline in cognitive function.

In Illinois, the Nurse Practice Act governs the education requirements, licensure, and professional expectations for nurses. References to the importance of a nurse’s fitness, or ability to complete the job requirements as assigned, can be found throughout the Act. For example, Section 1300.260 and 1300.350, which describe the Standards for Professional Conduct for LPNs and RNs, respectively, both state that a nurse shall “practice nursing only when in functional physical and mental health.” Section 1300.110 further states that should a nurse become physically or mentally impaired due to alcohol or drug use, he or she must actively pursue treatment under the supervision of the administrator of the “hospital, nursing home, health care agency or facility” that employs them. If the employee fails to comply with the recommended treatment, the statute requires that the hospital, facility, or agency report the nurse to the Board of Nursing within the Illinois Department of Financial and Professional Regulation (IDFPR).

Other situations in which a fitness for duty test may be required include nurses returning to work after an injury on the job or after having taken time off under the Family and Medical Leave Act (FMLA). In these cases, the hospital or facility will require a nurse to have a physician’s endorsement before allowing him or her to resume duties. Nurses who have allowed their license to expire or become inactive must also provide proof of fitness “acceptable to the Department” in order to have their license restored (Section 1300.50).

Additionally, nurses who refuse to comply may have their licenses temporarily or permanently revoked. Such was the case for a registered nurse who in 2014 was placed in “refuse to renew” status for failing to comply with a “workplace fitness for duty drug testing policy.” In this case, an RN’s refusal to submit to workplace drug testing was considered unprofessional conduct, a broad term defined as “a departure from or failure to conform to the standards of practice” as outlined in the Nurse Practice Act.

Under this provision, the Board has the authority to “suspend or revoke a license, refuse to issue or renew a license or take other disciplinary action” based on a wide range of behaviors that fail to meet the standards as described in the Act (Section 1300.90).

One recent case brought the subject of fitness for duty regulations into the public spotlight. According to court documents, in February 2012 St. James Hospital in Olympia Fields, Illinois, removed from service of one of their longtime emergency room registered nurses. According to the hospital, the RN had made a series of mistakes and questionable decisions in the months leading up to this decision, including “writing the wrong diagnosis on a patient’s discharge papers, failing to check a seclusion patient for contraband, and allowing a patient with chronic obstructive pulmonary to smoke.”

Instead of firing her, the hospital told the RN that she would need to complete a “mandatory Employee Assistance Program referral and a fitness-for-duty examination.” She did so, but when the examining physician referred her for a mental health evaluation, the nurse refused. Eventually, in the face of her noncompliance, the nurse’s employment was terminated. In turn, the nurse sued the hospital for wrongful termination, but the court found that because she had clearly understood the fitness for duty requirement, the hospital was acting in accordance with state law.

In this case, the hospital felt that the nurse’s behavior constituted clear signs of mental impairment and acted on that information. Many within the nursing community feel that fitness for duty requirements are invasive or unfair, and may attempt to hide the signs of physical, mental, or emotional impairment – whether their own or a colleague’s. Nurses may be reluctant to say anything out of fear that they or another nurse will lose their license or job. However, allowing conditions that affect a nurse’s ability to practice to go unchecked may ultimately cause serious actual or potential harm to patients, to hospital or facility staff, or to themselves. The state’s requirements in the Act are ultimately designed to protect patients.

Jordan Matyas

Jordan Matyas

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Jordan Matyas is a lawyer, lobbyist, and Founder of 1818 Legal, an Illinois professional licensing defense law firm he created in 2014. With more than 18 years of experience practicing law, he represents clients in a wide range of legal matters, including professional license defense, administrative law, land use and zoning, and state, local, and municipal law.

Jordan received his Juris Doctor from the University of Illinois — Chicago School of Law and is a member of the Illinois Bar Association.