Pandemic Demands on Nurse Practitioners: Can an Employer Really Do This?

Carolyn Buppert, MSN, JD

Disclosures

June 11, 2020

It is nothing new for an employer to ask a nurse practitioner (NP) to increase or decrease their working hours, change schedules or practice location, or even help out in a clinical area in which the NP has no experience. However, the frequency and degree of employer asks may have increased recently as a result of the pandemic.

The answer to "Can an employer do this?" can be fairly simple or complicated, depending on whether the NP has a contract.

If an NP doesn't have an employment contract, the employer can change the terms of employment, at will, without the consent of the NP. The employee can negotiate, propose, or request new terms, but the bottom line is that employers can change the terms of employment as they choose. The employee's options are to persuade the employer to leave things as they are, quit, or refuse the change and most likely be fired.

If an NP has an employment contract, then things can get complicated. Generally, an employer must follow the terms of a contract for the duration of the contract. The employer can't change pay, location, hours, or duties unless the NP agrees, usually in writing.

Some contracts include a force majeure clause that allows parties to change the terms or void the contract in case of war, acts of God, terrorism, or epidemics. However, most employment contracts don't have force majeure clauses.

Most employment contracts do include a provision that either the employer or employee may terminate the agreement without cause, with notice to the other party, and with the timeline for notification specified. The notice period might have been set at 30, 60, or 90 days. So, if an NP refuses a change in the terms of the contract, the employer can invoke the termination-without-cause clause, and the NP will have a job under the old conditions but only until the notice period is up.

In my opinion, in most cases, it is best in the long run—assuming that the NP likes the employment situation—to be flexible and agree to changes for a specified time until patient flow gets back to normal.

The NP might negotiate for something in return for agreeing to make the change. If there is something in the contract that the NP wants changed, it might be a good time to ask for that change in return for agreeing to do what the employer wants.

What about a situation where the employer wants the NP to cut their hours and be paid accordingly, but the NP doesn't want to do that and has another job offer? In that case, it is appropriate for the NP to give the employer the option of staying with the original terms or releasing the employer from the entire contract, so the NP can go somewhere else and work full time.

As far as changing the focus of practice, NPs should not perform services they are not qualified to perform. If an employer wants a minor change in practice focus and will provide adequate training, then it seems reasonable for the NP to agree, at least in principle. However, NPs shouldn't agree to any change that would put them in the position of needing additional formal education and certification. For example, an NP certified in adult primary care shouldn't agree to be redeployed to a clinic that evaluates and manages children.

If an employer puts an NP in a precarious position because a change of practice is required and no training is provided, the NP is out of his or her scope, and patient safety is compromised, this is the time to refuse. In this case, the NP has something valuable to lose. An NP who exceeds scope of practice could be sanctioned by the state board of nursing, sued by a patient or family, or even charged with inappropriate billing because payers require that NPs bill only for services they are qualified to provide.

Employers should understand that they are also at risk of being sued if they redeploy healthcare providers in ways that put patient safety at risk. It is true that some governors have issued executive orders that protect healthcare practitioners against liability for good faith actions taken in response to the call to supplement the healthcare provider workforce during the COVID-19 pandemic. However, these orders do not exempt anyone from liability for gross negligence. Gross negligence is carelessness that is in reckless disregard for the safety or lives of others. Putting an untrained provider into a situation in which their practice is unsafe for patients is likely to be seen as gross negligence.

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