ZERO TOLERANCE[horizontal ellipsis]SECOND CHANCES
Suzanne is a 28-year-old registered nurse working on a night shift at an orthopedic unit. She has been a nurse for 5 years and is a single mom of one child. Suzanne is an above-average employee with excellent prioritization and critical thinking skills and a preceptor to new staff members, functions as charge nurse, and is well-liked by her peers and patients. Other than one disciplinary action for absences, Suzanne is a model employee.
Suzanne's nurse manager received an anonymous phone call from "a concerned citizen" indicating that Suzanne was abusing drugs and coming to work impaired. After conversing with her supervisor, human resources, and employee health nurse, the nurse manager arranged for Suzanne to have a random drug screen as soon as she arrived for her next scheduled shift.
When Suzanne arrived for her next shift, the nurse manager proceeded with the random drug screening. Hospital policy requires that the employee be placed on administrative leave with pay until the drug screen results are complete. If an employee refuses a random drug screen, his/her employment is immediately terminated.
Suzanne initially resisted the drug screen. She was argumentative, cursing, pacing the office floor, banging the desk, and stomping with frustration while she ranted about the absurdity of having to complete a drug screen. After 30 minutes or so of reasoning with her, the nurse manager convinced her to have the drug screen.
A "chain of custody" drug screen takes 3 to 5 days to complete. The drug screen results were positive for 2 illicit substances at very high levels. The employee health notified human resources, who in turn notified the nurse manager. The state board of nursing has a zero tolerance policy, and healthcare professionals are required to report all "positive" drug screens, which include narcotics that have not been legitimately prescribed to the employee, illicit drugs, or any diversion or other action designed to provide remedial action or otherwise avoid detection.
The nurse manager reported the results of the screen to the board of nursing, and Suzanne's license was suspended by the board of nursing. She was required by the board of nursing to enroll in a chemical dependency program to be eligible for nursing license reinstatement and placed on a nonpaid personal leave of absence by the employing healthcare organization.
Suzanne was upset and embarrassed although she denied having a problem with chemical dependency. She told her manager that her "use" was a one-time occurrence at a party, and the anonymous caller had "set her up." Within 2 months, she met the requirements of the board of nursing, and her license was reinstated.
Suzanne returned to work as scheduled. She indicated to the nurse manager that she was remorseful and embarrassed but ready to resume her duties. She still had additional actions to take to complete the requirements of the board of nursing and the employing organization's human resources and employee health nurse. Suzanne returned to work the next week on night shift without licensure restrictions. Coworkers and physicians welcomed her back and had lots of questions about her short "sabbatical." She told them that she had some personal things to take care of and that she was fine and glad to be back at work.
The initial 2 weeks went by with no reported problems. During that time, Suzanne underwent one random drug screen, which eventually was returned with no indications of inappropriate substance use. The day after the initial random screen, however, she was asked to submit to another random drug screen. After the test was administered, the employee health nurse called the nurse manager to say that the employee's behavior was "different" compared to that of the preceding day and questioned if she should work the following night.
After talking with the employee on the phone and assessing her behavior, the nurse manager made a decision to let her work, thinking that the employee was simply frustrated at having to do another screen so soon. The employee stated that she was not dealing well with "always being watched," "under surveillance," and "not trusted." An additional consideration was that the nurse manager needed the experienced charge nurse to work her scheduled night shift.
When the result of the second screen was returned, it reflected positive for the same 2 illicit drugs as the original drug screen. The nurse manager immediately terminated Suzanne's employment based on these results. This event, and others similar to it, leads to an examination by senior management in the hospital regarding "zero-tolerance" versus "second chance" opportunities with regard to the use of illicit substances. The facility's policy regarding the course of action has been a topic of discussion both among senior management and the frontline staff. One argument looks solely at the bottom line-an employee who has failed a drug screen is assumed to be an addict, any rehabilitation must be done solely by that employee on his/her own while he/she is employed elsewhere, if at all. Those advocating this position are also heard to voice the argument that "once an addict, always an addict." They argue that patient welfare is potentially compromised by allowing an employee with a known history of substance abuse to return to work and that those decisions are unduly influenced by staffing and funding issues.
The counterpoint to this argument acknowledges that human beings are not infallible and sometimes make significant errors in judgment. Recognizing that through effort and perseverance, even substance abuse problems may be overcome, advocates of this position feel that an opportunity for redemption ought to be available. They point out that the cost of recruiting and replacing employees is significantly higher than the cost of retaining proven employees, and depending on the particular position, replacements may not even be locally available. In addition, employees may not feel supported by a facility that takes such a hard-line attitude toward its human capital, thereby contributing to employee dissatisfaction and turnover, which further impacts the bottom line.
Zero tolerance policies are a double-edged sword. There are numerous instances when they have produced absurd results, but they offer the benefit of providing a clear "bright-line" rule that protects the institution and the public in cases such as this. Overall, if the decision is to err on the side of caution, removing an employee who has tested positive for illicit substances results in little more than inconvenience for the other employees and the facility but puts no one in danger. Protection of both patients and the institution is at a maximum level, although the social cost of that protection is entirely on the employee.
Conversely, allowing an employee to remain on the job and tend to patients when there is a failed drug screen is a plaintiff's attorney's dream in the event that some unfortunate incident occurs. After all, at that point, the supervisor and the healthcare facility not only have suspicion of some type of inappropriate conduct but there is also a laboratory test that confirms it. In addition, it is a laboratory test that would be difficult to attack because more likely than not, the facility uses the same testing laboratory to do preemployment screening. If the results are relied upon by the facility for one purpose, they must, by definition, be adequate for all purposes.
Suzanne's case supports the argument for immediate termination, especially if some detrimental event had occurred after the positive test results were known and the employee health nurse not only noted but also reported the "different" behavior at the administration of the test. The decision to allow her to work her shift that evening was, by the supervisor's own report, based in part on the need for night staff to fill positions. The convenience of the facility was potentially placed ahead of patient safety, or at least that is the argument that will be made in the event of litigation.
Although it is inconvenient to have an employee suddenly out, it is no more of a nuisance for it to happen as the result of a failed drug screen than it is to have an employee absent because he/she or his/her spouse, child, or other family member suffers an unexpected health condition. From the perspective of the state nursing board, whose primary function is to protect the public, there can be no alternative other than to immediately suspend the credentials of the errant nurse. Zero tolerance is the absolute protection for public safety.
The other issue that is somewhat telling here is the reaction of the employee to the request that she has to take the random screen. Although it may be somewhat unnerving or annoying to be tagged for a random screen, most facilities clearly indicate that it is a condition of employment, and it should surprise no one to occasionally be tapped. Given the risk to the public of employees using illicit substances and the fact that screening is done by urinalysis rather than drawing blood, most courts agree that the invasion of the person and his/her rights is minimal and far outweighs the benefit to society overall. The fact that a nurse would become so upset over the request and she is "[horizontal ellipsis] argumentative, cursing, and pacing the office" for 30 minutes should be viewed as a "red flag" to the supervisor.
The argument in favor of allowing a second chance is equally compelling. To allow an employee a second chance benefits both the facility and the employee. It recognizes the fact that a screen can be in error or even, as the employee maintains here, that the event was a one-time proposition never to be repeated. As long as the employee who has failed the screen complies with all educational and rehabilitative actions required, there is no reason not to allow him/her to return to his/her duties-especially with the full understanding that he/she will be subject to heightened screening, at least in the foreseeable future. It prevents an isolated error in judgment from becoming a personal disaster that can devastate not only the employee but his/her entire family.
An employee who has failed a drug screen should neither be surprised nor annoyed that he/she is asked to take multiple tests upon his/her return to work. Like an errant spouse, he/she has violated the trust between him/her and his/her employer, even if it was an isolated one-time event. It is the employee's obligation to put forth the extra effort to rebuild that trust and show that it truly was a one-time event or, alternatively, that rehabilitation efforts have been effective and there is no continued threat to the public. To follow Ronald Reagan's adage of "trust, but verify" is appropriate to protect all of the parties involved.
The alternative to a second chance policy is, of course, immediate termination. This was the rule for many years, and to allow another opportunity to the employee acknowledges that no one is infallible and people can change. A zero tolerance policy implements immediate consequences but allows the employee the opportunity to prove himself/herself after an incident. Once that has been allowed, however, there is no right to expect further opportunities.
Is it ethical for the healthcare facility to allow an employee a second chance? For administrators, zero tolerance has the advantage of immediately eliminating the problem of employee use of inappropriate substances. Should some unfortunate incident occur, absent any indication of knowledge that the employee had a propensity toward the use of these substances, the defense of the facility is much easier and stronger. The business case of accepting the increased risk that goes with retaining an employee who has been known to use illegal substances must be balanced by the shortage of healthcare providers, especially in geographic areas or specialties wherein nursing shortages are especially acute. The failure to immediately remove an employee who is acting suspiciously may be a false economy that can have terrible effects on the facility's costs, either through increased insurance premiums or judgments entered by the court.
Section Description
Conversations in Ethics is an open forum hosted monthly by Catawba Valley Medical Center in Hickory, North Carolina. A box lunch is provided free of charge to participants who meet to discuss a specific case that is distributed in advance. The program lasts from noon to 1:00 pm and is also open to the public. The purpose is to discuss ethical situations which confront healthcare providers and evaluate possible options and considerations available. The goal is not to provide a resolution to the situation, but rather to evaluate options available and gain perspective on common situations from various points of view. Please note that the situations presented here are fictional, although they are composites of various situations that have been encountered by the authors or other individuals providing background information or suggestions.