Monday, September 6, 2010

Professional Ethics and Unemployment Insurance

In Matter of Emery v. Memorial Sloan Kettering Cancer Center, the Appellate Division, Third Department recently affirmed a grant of unemployment insurance benefits for a nurse (who was also an attorney) who left her employment because she believed she could face professional disciplinary charges for falsely claiming to have witnessed patients signing informed consent documents. After an administrative Hearing, the employee was granted unemployment insurance benefits. That grant was upheld by the Unemployment Insurance Appeals Board and affirmed by the Appellate Division, which found that the employee had good cause to leave her employment.

Generally, unemployment insurance benefits are not provided to employees who leave their jobs voluntarily. One exception to this general rule is where an employee has good cause to leave the employment due to an employer policy or directive which could cause the employee to violate certain rules of professional ethics.

In the Emery case, the employer hospital enacted a policy requiring nurses to acknowledge that they had witnessed patients executing informed consent documents. The acknowledgement was necessary even if the nurse was not present when the documents were signed, but confirmed the signature later. When the employee objected to the policy on grounds that it could require nurses to engage in professional misconduct by acknowledging signatures which they did not witness, the employer advised that its policy would not change. After the employee was deemed to have resigned, the employer changed its informed consent policy to address the concerns raised by the employee initially; the consent forms were revised to include language where the nurse could acknowledge that he/she had not seen the patient sign the documents, but that the signature was confirmed with the patient later. Interestingly, the employer’s policy as first issued may have required the employee to violate attorney professional ethical standards as well; a sort of “one-two punch” given her dual role as a nurse and attorney.

I think the Court got it right in this instance.

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