Your nursing practice likely has enormous value to you, providing you with a secure job, steady income and other benefits, ministry or mission of patient care, and professional standing, reputation, and relationships. But disciplinary charges with your state nursing board threaten those benefits. You could lose your license, employment, and practice to disciplinary charges, including charges relating to excessive absenteeism. If you face disciplinary charges relating to your work attendance and absences, retain the Lento Law Firm's premier Professional License Defense Team to defend the charges for your best outcome. Call 888.535.3686 or complete this contact form now for our strategic and effective representation.
Employer Interests Relating to Absenteeism
Periodic or chronic work absences and unexplained failures to show up for work are, first of all, an employer's concern. Your employer and the healthcare facility in which you work, if different from your employer, must concern themselves with consistent, qualified nursing staffing for patient care. Operating a healthcare facility is not the sort of activity that one can easily close for employee vacations, illnesses, or other unscheduled personal days off. You can't leave patients in a hospital, clinic, residential facility, or other institutional setting without nursing care while they suffer from acute or chronic disease and disabling conditions. Employers care about reliable staffing. Employers have due concern about unexplained or chronic absenteeism. They may suspend, demote, and terminate unreliable employees who show no-call or otherwise display irresponsible attendance behaviors. As an employed nurse, you've dealt with absenteeism employment issues.
State Nursing Board Interests in Absenteeism
The question here, though, is when employer interests in absenteeism turn into state nursing board interests in absenteeism. Absenteeism can also be a state nursing board disciplinary issue. State nursing boards have the statutory obligation under state nursing practice acts to regulate the nursing profession for patient protection and public confidence. See, for example, Section 464.002 of the Florida Nurse Practice Act, declaring its purpose to protect patients and the public from the danger of substandard nursing. Nursing standards generally prohibit nurses from abandoning or neglecting patients and from otherwise disrupting the workplace with misconduct outside the customs of the profession. A nurse's unscheduled, unexplained, and chronic absences can lead to patient neglect, abandonment, and other disruption of healthcare services. If your absences are so frequent and disruptive that your employer disciplines you or terminates your employment, or patients and their family members complain of harm, you may face state nursing board disciplinary charges relating to your absenteeism.
Nursing Board Authority to Discipline
Your state nursing board has your state legislature's authority not only to issue and renew your nursing license but also to discipline, suspend, and revoke that license for misconduct. The Florida Nurse Practice Act once again provides an example. The Act's Section 464.018 authorizes the Florida Board of Nursing to deny, suspend, revoke, or otherwise discipline a nursing license on a long list of disciplinary grounds. State nursing boards employ investigators and other disciplinary officials to receive and act on complaints of nursing misconduct violating board standards. If you have already received notice of your state nursing board's disciplinary charges relating to your absenteeism, you should recognize and respect the board's authority and commitment to pursue your discipline, up to suspending or revoking your license. Don't minimize or ignore your disciplinary charges. Instead, promptly retain us to defend those charges.
Disciplinary Grounds on Absenteeism Charges
The disciplinary grounds that state nursing practice acts generally authorize typically include patient neglect or abandonment and other grounds that can reach nurse absenteeism. The disciplinary grounds are important. State nursing boards cannot just make up the disciplinary grounds. They must identify the statutory and regulatory basis for discipline in the state Nursing Practice Act and state board administrative rules adopted under the act's authority. Section 464.018 of Florida's Nurse Practice Act once again provides a reasonable example, prohibiting “unprofessional conduct” as Florida Board of Nursing rules define it. Florida Board of Nursing Rule 64B9-8.005 on unprofessional conduct defines it as “leaving a nursing assignment without advising licensed nursing personnel.” That prohibition is likely broad enough to include unexplained absenteeism, depending on the circumstances.
The Texas Nursing Practice Act provides another example. Its Section 301.4535 requires a mandatory license for any nurse who intentionally or recklessly abandons the care of a child patient. That prohibition would pretty clearly reach absenteeism that leaves a minor patient unattended. The Act's Section 301.452 broadens the prohibition to include “unprofessional conduct in the practice of nursing” likely to injure a patient or violate the public trust. Again, that prohibition would likely reach absenteeism that presents risks to patients under the absent nurse's scheduled and assigned care. Let us help you evaluate whether your state nursing board has the disciplinary authority to reach your alleged absenteeism. We may be able to defend your disciplinary charges on the basis that your state nursing practice act and board rules do not reach your alleged absences.
Leave Rights as a Defense to Absenteeism Charges
Depending on your employment circumstances, you may have medical and family leave rights under the federal Family and Medical Leave Act (FMLA). Your employer may have owed you the obligation to accommodate your work absences for your serious medical condition or for you to care for a close family member with a serious medical or other need. Your employer may also owe you contractual leave rights or employment benefits for personal, sick leave, and vacation days. These rights may affect whether your employer may treat your absences as excessive or unexcused. They may also influence whether your absences were proper or, on the other hand, improper, excessive, unexcused, and unexplained.
These rights, though, do not directly determine whether you are subject to state nursing board license discipline for unprofessionalism, patient abandonment or neglect, or related absenteeism grounds. Discipline depends on your violation of or compliance with state nursing board standards, not employment contracts or employment rights and obligations. Your employment rights may influence whether you committed a standards violation, but your employment rights do not outright determine standards violations. Let us help you parse your contract and statutory rights relating to your work absences to raise any potential defenses or arguments in the mitigation of disciplinary charges for absenteeism. Your employer may have blamed you for absences, but if contracts or laws required your employer to accommodate your absences, and you gave appropriate notice of those absences to your employer, then your employer may be to blame for any patient abandonment, neglect or other workplace disruption.
Factors Influencing Absenteeism Charges
The outcome of your disciplinary charges alleging absenteeism and associated patient risk, harm, abandonment, neglect, or other disruption of the workplace may depend on several factors. We can help you identify, gather, organize, and present exonerating and mitigating evidence around these factors for your best defense against absenteeism charges. That evidence may involve your testimony, the testimony of other witnesses, your attendance records, including any timesheets or time clock records, your employment contract, and your medical records or the medical records of your close family members supporting your need for work absences, among other things. The factors influencing your disciplinary outcome may include:
- the number of your absences;
- the duration of your absences;
- whether your absences were continuous or periodic;
- your employer's needs during your absences;
- your notice to your employer of your absences;
- the timing of your notices giving advance warning;
- your reasons for your absences;
- the duties for which your employer scheduled you;
- the patients harmed, disturbed, or at risk due to the absences;
- the facility operations disrupted due to the absences;
- the coverage by others of your absences necessitated;
- the expenses your employer or facility incurred;
- the documentation supporting your absences; and
- whether patients or their family members complained.
Causes of Absenteeism
The causes of your absenteeism can also influence the outcome of your disciplinary charges alleging patient abandonment, neglect or workplace disruption due to excessive, unexcused absenteeism. Strictly speaking, the cause for an absence might not matter if the absence itself is unexplained and exposes patients to risk. You might have good or poor cause for absences and still comply with your nursing standards duties if you give your employer reasonable notice of your absences so that your employer can arrange substitute coverage. The regulatory and disciplinary issues have to do with disruptions of nursing care, not with work schedules, breaks, and absences. Yet causes can convince disciplinary officials to pursue or dismiss charges, depending on the merit, compassion, understanding, or condemnation that the causes draw. Here are some causes that may either aggravate or excuse disciplinary charges relating to absences:
Aggravating Causes for Disciplinary Charges for Absences
- partying or staying out late, disrupting sleep and work schedules;
- attending concerts or other social activities;
- recovering from excessive use and abuse of alcohol or drugs;
- hunting, fishing, boating, or other sporting pursuits;
- running, biking, swimming, or other fitness activities;
- travel for pleasure.
Mitigating Causes for Disciplinary Charges for Absences
- seeking treatment for disease or injury;
- recovering from disease or injury;
- caring for close family members suffering from disease or injury;
- pursuing education, training, or related professional studies;
- conducting professional association matters;
- attending professional conferences;
- pursuing nursing research or teaching opportunities;
- assisting nursing colleagues with personal matters;
- motor vehicle accident or airline interruptions.
Avoiding Disciplinary Charges for Absenteeism
You may have the opportunity to avoid disciplinary charges for absenteeism if you act swiftly to retain us the moment you learn of such allegations. If, for instance, your employer threatens employment termination and a state nursing board report, we may be able to help you gather documentation of your grounds for absences to present to your employer consistent with your contractual and statutory rights. We may be able to show your employer that your employer should be accommodating your work leaves under the FMLA or workplace leave policies. Our advocacy of those or other grounds excusing your absences may head off a disciplinary complaint. Don't delay in retaining us until after your state nursing board has filed formal disciplinary charges if you learn of the allegations sooner. Let us intervene and advocate to head off charges.
Responding to State Board Investigation
If, on the other hand, your state board has already contacted you to investigate an absenteeism complaint, or you learn from your employer or another person that the board's investigator is seeking information about your matter, then you may still have a chance to head off formal disciplinary charges. When you retain us, we can seek to reach the state board investigator to whom to present your truthful, accurate, and complete information with supporting documentation. Beware of responding on your own to the investigator with preliminary, uncertain, or incomplete information that is inconsistent with documentation. Inaccurate information may result in allegations that you misled the investigator and interfered with the investigation, which could be independent grounds for discipline even if the investigation confirms that you were not excessively absent. We can help you prepare for the investigator's interview to ensure that you share accurate information. We can also use the investigation stage to advocate for the dismissal of the complaint, including by offering remedial measures within your ready reach, whether evaluation, counseling, mentoring, or the like. Let us help you head off disciplinary charges, if possible.
Formal Hearing on Absenteeism Charges
If, instead, your matter proceeds from investigation to formal disciplinary charges, then we can invoke your formal hearing rights to present your exonerating and mitigating evidence before an impartial decision maker. State nursing practice acts routinely provide such procedural protections to meet their obligations to respect your constitutional due process rights. Some state nursing practice acts define their own procedural protections, while others refer to and incorporate the state's administrative procedures act. Section 70-160 of the Illinois Nurse Practice Act is an example of the latter approach, expressly incorporating the procedural protections of the state's Administrative Procedure Act. When your state nursing board schedules your formal hearing, we can secure witness attendance by subpoena if necessary, present your testimony and the testimony of your witnesses, and cross-examine adverse witnesses. We can also present your documentary evidence while challenging adverse documentation. Our attorneys have the administrative hearing skills to advocate strategically and effectively for your best hearing results. Absenteeism charges often involve conflicting claims, accounts, and documentation. We know how to present your challenges and efforts in the proper light so that the hearing official or panel reaches your best decision.
Post-Hearing Relief from Absenteeism Discipline
If you have already lost your formal hearing, we can pursue the administrative appeals available under your state's Nursing Practice Act, state nursing board rules, or the Administrative Procedures Act. In some states, appeals go from the hearing officer to the full state nursing board. In other states, appeals go from a committee or designated officer of the board, or the full board, to a higher administrative official or panel at a state healthcare department or licensing division or agency. In other states, appeals go directly to a state civil court. Our attorneys know how to prepare and present your appeal to the best effect, identifying the reversible error as necessary to prevail in the appeal. Those reversible errors may involve due process violations, gaps in required supporting evidence, a result against the evidence's great weight, errors in legal rulings, or bias or conflict of interest on the decision maker's part. Let us seek all available post-hearing relief until we achieve your best possible licensing outcome.
Disciplinary Sanctions for Absenteeism Violations
State nursing practice acts authorize a wide range of different forms of discipline for the state nursing board to choose. The Tennessee Nurse Practice Act is an example, Authorizing the Tennessee Board of Nursing to adopt administrative rules defining disciplinary sanctions. Tennessee Board of Nursing Rule 1000-01-.07 accordingly authorizes the Board to “deny, revoke or suspend any certificate or license to practice nursing, or to otherwise discipline a licensee” according to the Board's preferences. State nursing boards usually have substantial discretion to penalize or not penalize, with different sanctions, in absenteeism cases. Only in cases of criminal felony convictions or other clear and compelling grounds may the state nursing board find itself bound to suspend or revoke a license. However, the state board may suspend or revoke a license on virtually any violation if it finds the circumstances warrant it.
Your state nursing board's discretion to impose sanctions gives our attorneys the opportunity to advocate for remedial measures, or no sanctions at all, in lieu of punitive measures. Punishment would involve license suspension or revocation, or license limitations to certain locations or services, or restriction to supervised practice. By contrast, remedial measures might involve your evaluation and counseling or treatment, or your training or mentoring, generally something within your control to readily complete for your own benefit. Let us make your best case for mitigating any sanctions so that you face no discipline, no reputational harm, and no interruption of your nursing employment and practice.
Impacts of Discipline on Your Nursing License
As you consider how to respond to state nursing board disciplinary charges involving allegations of absenteeism, be aware of the potential impacts of discipline. Don't ignore the charges or minimize your efforts to overcome and defeat them. Be sure to retain us at your first notice of the charges so that we can mount your strongest and best defense. If you don't make an effective defense, and if instead you do suffer discipline, be aware of both the direct and collateral impacts. The direct impacts of a license suspension is that you will not be able to practice nursing. If you retain any healthcare related employment, it must be outside of nursing practice, such as billing, custodial, or administrative work. You could lose substantial employment security, income, and benefits. If you lose your employment, you can imagine the financial, family, relational, and reputational harm that could follow. If you are unable to regain your license, you may lose the nursing career into which you have invested so much. Lose your license in your current state of licensure, and you may be unable to gain a license in another state, given that state nursing boards share discipline information through the national Nursys database and take other pains to discover state-to-state discipline. Let us help you avoid the worst impacts of license discipline. You may have a fully defensible case if you let us put forth your best defense.
The Qualifications of License Defense Counsel
You should recognize from the above discussion of administrative procedural protections that administrative license defense is complex. License defense in a case alleging violations of absenteeism can involve federal and state employment statutes and rules, state Nursing Practice Act provisions, state nursing board or other administrative licensing agency rules, and procedures dictated or offered by the Nursing Practice Act, nursing board rules, or administrative procedures act. Our attorneys have the substantial administrative law knowledge, skills, and experience to navigate and deploy that authority strategically to its best effect. By contrast, local criminal defense counsel and civil litigation attorneys practice under different laws in a different court forums, following different rules and procedures. Do not retain unqualified criminal defense counsel or civil litigation representation. Let us use not only our administrative knowledge and skills but also our national license defense reputation and licensing board relationships for the best possible outcome in your absenteeism disciplinary case. Your nursing career is worth protecting. Don't let lingering disciplinary sanctions and records affect you long term. Get our highly qualified representation.
Premier License Defense Attorneys Available
If you face state nursing board disciplinary charges alleging excessive absenteeism, retain the Lento Law Firm's premier Professional License Defense Team now for your best possible disciplinary outcome. We have helped hundreds of nurses and other healthcare professionals in state board disciplinary proceedings nationwide. Call 888.535.3686 or complete this contact form now for the representation you need to protect your nursing license and career.
