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A health care worker should not be held to a higher standard of care in determining unemployment compensation when his or her alleged willful misconduct was an inadvertent or unintentional mistake, the Pennsylvania Supreme Court ruled. “We specifically reject the Commonwealth Court’s adoption of an ad hoc ‘higher standard of care’ for health care workers, which apparently would permit any act of negligence or inadvertence on the part of a health care worker, standing alone, to be deemed willful misconduct,” Justice Ronald D. Castille wrote for the court in Navickas v. UCBR. Justice Sandra Schultz Newman did not participate in the decision, and Justice Russell M. Nigro filed a brief concurring opinion. The court’s decision reinstated the decision of an unemployment compensation referee to award nurse Marcene Navickas unemployment compensation after her employment was terminated at Children’s Hospital of Philadelphia. Navickas was hired at CHOP on Oct. 20, 1997, five months after she graduated from nursing school. In the summer of 1998, the opinion says she made an error in treating a pediatric intensive care patient. Navickas was then placed under the supervision of an experienced pediatric nurse for five weeks. After her “reorientation,” she worked without a supervisor until Oct. 7, 1998, when her employment was terminated. A week before her termination, Navickas allegedly failed to properly dilute an antibiotic before giving it to a patient. While the patient was not harmed, a supervisor later found out about the error. Under CHOP’s policies, a nurse is required to look up medication in a reference book if he or she is unsure about the dilution ratio. The supervisor informed Navickas that she could resign or be fired. Navickas chose to resign. Navickas then filed for unemployment compensation benefits, which the job center granted. CHOP filed an appeal. After a hearing, the referee said CHOP could not prove willful misconduct and awarded Navickas compensation benefits. CHOP appealed to the Unemployment Compensation Board of Review, which reversed the referee’s decision. A divided panel of the Commonwealth Court affirmed that decision. Willful misconduct is not defined in the unemployment compensation statute, but the Supreme Court has defined willful misconduct in unemployment compensation matters as: “a) wanton or willful disregard for an employer’s interests; b) deliberate violation of an employer’s rules; c) disregard for standards of behavior which an employer can rightfully expect of an employee; or d) negligence indicating an intentional disregard of the employer’s interest or an employee’s duties or obligations.” The court acknowledged that the level of willful misconduct can vary depending upon an employer’s specific occupation or work situation. Castille also said that the court has never “authorized specific substandards applicable to individual occupations,” nor has the court ever suggested a standard different from what the statute provides. The high court then detailed the cases in which the Commonwealth Court has held health care workers to a higher standard of care in determining whether an employee’s actions equaled willful misconduct. Castille said that although the Supreme Court has never commented on the Commonwealth Court’s standard, the high court has rejected the notion that “mere negligence” can prove willful misconduct. The court then rejected the Commonwealth Court’s higher standard of care for health care workers. “In so doing, we do not dispute that the needs of certain health care employees are such that they might reasonably deem any act of negligence sufficiently serious as to warrant termination of employment,” Castille wrote. “Nor do we doubt that there are other occupations of sufficient gravity that employers might reasonably conclude that even isolated acts of negligence are sufficiently serious as to warrant termination. “But those are questions of policy that are not posed by the unemployment compensation law we are called upon to construe.” The court said the act sets forth a standard of willful misconduct that does not provide any distinctions for any given employment, and in fact, “counsels against judicial constructions which would permit ad hoc exceptions to the willful misconduct standard.” Castille said, however, that an employer’s “needs, interests and expectations” are not irrelevant in determining whether an employee’s actions constitute willful misconduct. “As we have noted above, under our precedent, those considerations are certainly germane to determining, among other things, what are the legitimate rules and expectations of an employer, what constitutes a violation or misconduct under those rules, and when conduct is so egregious or repetitive as to warrant a finding that it is willful,” Castille said. In his concurring opinion, Nigro said he agreed with the majority that the Commonwealth Court improperly set a higher standard of care for nurses. But, he said that although it is not applicable in this case, he thinks that if an employee commits a series of errors, even if they are unintentional, that employee could be guilty of willful misconduct. George J. Badey of the Philadelphia firm Sheller Ludwig represented Navickas. Harrisburg lawyers Clifford F. Blaze and Maribeth Wilt-Seibert represented the UCBR. Harrisburg attorney Mark Ecker represented unemployment insurer R.E. Harrington Inc. and CHOP. Bruce M Ludwig of Sheller Ludwig represented amicus Service Employees International Union.

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