Legal Updates

States Continue To Enact Restrictions On Mandatory Overtime For Nurses

Widespread concern regarding overworked nurses and patient safety has led Rhode Island and New Hampshire to join a growing number of states (including Maine, Connecticut and New Jersey) that restrict or prohibit mandatory overtime for nurses.  Proponents of this type of legislation have argued that nurses who work more than twelve (12) hours per day are exhausted, less efficient, and at risk for making mistakes that harm patients, and that job dissatisfaction and overtime work have contributed to the departure of many qualified nurses from the profession.

Rhode Island

Beginning March 4, 2008, health care facilities in Rhode Island will be fined if they require nurses to work overtime in excess of an agreed to, predetermined scheduled work shift of eight (8), ten (10), or twelve (12) hours, unless there is an unforeseeable emergent circumstance.  “Unforeseeable emergent circumstance” is defined under the Rhode Island law as an unpredictable occurrence relating to health care delivery that requires immediate action, including a major power outage, a public health emergency, an irregular increase in patient census, or an irregular increase in the number of employees not reporting for predetermined scheduled work shifts.  The law does not apply in the event of an unforeseeable emergent circumstance when:  (i) the overtime is required only as a last resort and is not used to fill vacancies resulting from chronic short staffing; and (ii) the employer has exhausted reasonable efforts to obtain staffing.  Even in the event of an unforeseeable emergent circumstance, no health care facility may require a nurse or nurse assistant to work in excess of twelve (12) consecutive hours.

The new law applies to all nurses and nurse assistants who work on an hourly basis in any private, public, or state hospital.  The law does not apply to certified registered nurse anesthetists, resident physicians, or employees who are working pre-scheduled “on-call time” in the surgical department of a health care facility.  While nurses and nurse assistants may voluntarily agree to work overtime, employers cannot discipline these employees for refusing overtime.  The law is not intended to negate any rights an employee may have pursuant to a collective bargaining agreement.

Any employer who violates the law will be subject to a fine of Three Hundred Dollars ($300) for each violation.

New Hampshire

As of January 1, 2008, registered nurses, licensed practical nurses, and licensed nursing assistants in New Hampshire cannot be disciplined, or lose any right, benefit, or privilege for refusing to work more than twelve (12) consecutive hours.  The prohibition does not apply to:

1. A nurse participating in surgery, until the surgery is completed;
2. A nurse working in a critical care unit, until another employee beginning a scheduled work shift relieves him or her;
3. A nurse working in a home health care setting, until another qualified nurse or customary caregiver relieves him or her;
4. A public health emergency; or
5. A nurse covered by a collective bargaining agreement containing provisions addressing the issue of mandatory overtime.

If a nurse is required to work more than twelve (12) consecutive hours under any of the above-listed circumstances, the nurse must be allowed at least eight (8) consecutive hours of off-duty time immediately following the worked overtime.

Any employer who willfully violates this new law may be subject to a penalty of up to Two Thousand Five Hundred Dollars ($2,500).

Federal Legislation

In addition to state legislation, bills have been introduced at the federal level to limit mandatory overtime for nurses and impose minimum nurse staffing ratios on certain health care providers participating in the Medicare program.  Pursuant to the Safe Nursing and Patient Care Act of 2007, a Medicare provider would be prohibited from requiring a nurse to work in excess of any of the following: (i) the scheduled work shift or duty period of the nurse; (ii) twelve (12) hours in a twenty-four (24)-hour period; or (iii) eighty (80) hours in a consecutive fourteen (14)-day period, except during a declared state of emergency.  Under the Registered Nurse Safe Staffing Act of 2007, hospitals participating in Medicare would be required to adopt and implement a staffing system that ensures a number of registered nurses on each shift and in each unit of the hospital to ensure appropriate staffing levels for patient care.  Identical bills were introduced in the House and Senate and have been referred to the appropriate Committees for consideration.  Whether, or the extent to which, these bills will become law is uncertain.

Impact of Legislation

Health care entities in Rhode Island and New Hampshire must ensure they are in compliance with these new laws.  We will continue to keep you informed of pending state and federal legislation that may affect overtime and staffing procedures in the near future.

If you have any questions about healthcare related employment issues in any of the states in which you operate, please contact one of the Firm’s attorneys for assistance.