Employers: Understand How to Manage Overtime Regulations in the Healthcare Industry

Multiple studies have confirmed what seems like common sense–when nurses work long hours, it lowers the quality of care. Plus, it  puts the nurse’s health at risk and obliterates their work/life balance. 

Thus, many states have enacted laws that regulate overtime for nurses.

In this article, we look at states with laws in addition to the federal overtime laws. Since most laws apply equally to nurses and Certified Nursing Assistants (CNA), for the purposes of this article, the word nurse refers to CNA unless noted.

Alaska Limitations On Mandatory Overtime Work For Nurses and CNAs

What is Alaska’s law on nurses working overtime?

Healthcare employers in Alaska can’t require mandatory overtime for nurses.

Who is protected from working mandatory overtime in Alaska?

In Alaska, the law covers both nurses and a certified nursing assistants (CNAs).

What is mandatory overtime?

Mandatory overtime is defined as any work beyond a “regularly scheduled shift.” The law defines a “regularly scheduled shift” as a shift upon which both the nurse and the healthcare employer agree.

Did you know that Alaska has maximum shifts for nurses?

Even when a nurse voluntarily works overtime, the maximum shift is 14 consecutive hours.

Furthermore, after a nurse’s shift, the employer must provide at least 10 consecutive hours of off-duty time. This is with or without overtime.

The law doesn’t prohibit nurses from voluntarily working overtime.

Furthermore, there are exceptions to this law (HB 170 section 10.20.400). These exceptions cover the ability for employers to force overtime. They also place restrictions on the 14-hour maximum shift.   

• Nurses can volunteer for overtime up to 14 consecutive hours
• After a 14-hour shift, the employer must immediately provide 10 off-duty hours
• Prohibits voluntary overtime if it would jeopardize employee or patient safety

Exceptions to the 14-Hour Shift Limit

Are school nurses exempt from a 14-hour shift?

Alaskan nurses who are employed by an educational institution are exempt. This including schools, school districts, and other educational institutions.

Overtime is allowed when the nurse is on duty for more than 14 consecutive hours during a special occasion or event. For example, a school field trip.

However, these special events must be employer -sponsored.

Who else is exempt from long shifts?

Secondly, a nurse who is voluntarily working overtime on an aircraft in use for medical transport. If the shift is allowed under regulations adopted by the Board of Nursing. This is an exception to the 14-hour shift maximum length requirement.

• School nurses covering a special occasion that lasts over 14 hours
• Medical transport flights: Nurses can volunteer for a shift longer than 14 hours

In addition, there are emergency situations when an employer can require the nurse to work overtime.

Alaska’s Exception to Mandatory Overtime Restrictions

An employer can require a nurse to work overtime if the nurse is participating in a medical procedure or surgery that has begun but has not completed.

Additionally, an employer can require overtime for an unforeseen emergency.

An emergency is defined as a situation that could jeopardize patient safety. It must be unusual, unpredictable, or unforeseen. This can include an act of terrorism, disease outbreak or natural disaster.

• Act of terrorism
• A disease outbreak
• Natural disaster or major disaster
• Disaster emergency

However, it does not include situations where the facility had a reasonable knowledge of increased patient volume. It also doesn’t cover a situation where there is foreseeable inadequate staffing.

Furthermore, Alaska also provides another exception to mandatory overtime.

When can employers require mandatory overtime of Alaskan nurses?

Unlike many other states, Alaska allows mandatory overtime when there is a scheduling issue due to an unforeseen event. If a situation prevents a second nurse from reporting to work and relieving the first nurse, then the employer can require overtime.

What types of situations qualify for mandatory overtime?

Exceptions include “unforeseen weather conditions.” For example, a storm so extreme that it prevents an employee from traveling to the healthcare facility.

Yet it doesn’t include extreme weather that the employer had prior knowledge of. In other words, if they had enough time to avoid the scheduling problem.

How can rural healthcare providers deal with nursing shortages?

Some facilities in rural areas can force overtime. But the organization must declare a temporary staffing emergency.

Upon the declaration, the facility must send a report to the state Department of Labor.

Temporary staffing emergencies can only last up to 30 days. If more than 2 emergencies in 6 months occur or more than 3 in a year, the facility must send a report to the Alaska Legislative Council.

To recap, these are the overtime exceptions in Alaska:

• A nurse is participating in a medical procedure that has not completed
• Unforeseen emergency situation
  • Terrorism
  • Disease outbreak
  • Natural or major disasters
• When an unforeseen event such as weather causes a scheduling issue. (Does not cover weather events that were forecasted ahead of time)
• Rural facility declares a temporary staffing emergency
• Federal government employed nurses are exempt
• Tribes employing nurses are exempt

Voluntary Overtime is Allowed Providing These Conditions Apply:

There are many situations when voluntary overtime is allowed in Alaska.

Most notably, an employer can allow overtime any time a nurse wants to volunteer. Of course, the employer must also agree.

The only exception is if the voluntary overtime creates a risk to the physical safety of someone. This includes the nurse (or CNA), a patient, or an employee.

Again, overtime cannot exceed 14 consecutive hours.

Overtime is also allowed when an employer and nurse pre-schedules mutually agreed upon on-call time. In those situations, the nurse can fulfill the on-call time and work overtime.

• Nurses can volunteer unless it causes a danger to someone (such as extreme fatigue)
• If it doesn’t go over 14 consecutive hours
• If it is part of an on-call schedule that was agreed to and scheduled
• If a 10-hour rest break is given immediately after the shift ends

Exceptions for Psychiatric Treatment Hospitals

It’s important to note that psychiatric treatment nurses can work more than 14 hours in a shift. But, there are conditions. Only specific schedules allow for shifts longer that 14 hours. The law specifies the overtime pay and the rest required after the shifts.

If a nurse works longer than a 14-hour shift, then the nurse must voluntarily agree to work a 16-hour shift. This shift must be between Friday night and Monday morning. It covers Friday at 5:00 pm to Monday at 8:00 am. Any nurse who works a 16-hour shift must receive the same benefits and pay as a nurse working 20 hours. The law assumes these two nurses are in the same position.

Plus, nurses who work a 16-hour shift must be given eight hours of rest before working another 8-hour shift.

• The 16-hour shift must occur over the weekend
• Nurses who work 16-hour shift must be paid as much or more than if they worked 20 hours in the same position
• 16-hour shifts cannot be combined with an 8-hour shift without at least 8 hours of rest between shifts

Although the law may seem complex, employers should know that mandatory overtime is prohibited in most situation.

The ability to predict patient volume and shift needs for nurses is vital to quality of care and nurse effectiveness.

Healthcare providers (including hospitals) can use predictive scheduling and workforce management tools to manage nurse schedules. These tools will alert managers when nurses approach configurable thresholds.

Also,

Managers can keep an electronic list of nurses who are available for extra shifts.  They can sort the list by those who would like to volunteer for more hours, and various skills and education levels. That way, the employer can meet staffing needs and avoid the need for overtime.

Resources

HB 0170

http://labor.alaska.gov/lss/forms/nurse_ot_summ.pdf

http://labor.alaska.gov/lss/forms/Nurses_FAQ.pdf

Arkansas Overtime Restrictions

Does Arkansas have a law against mandatory overtime of nurses?

That’s a great question! Many online articles include Arkansas as one of the states that have laws against mandatory overtime of nurses.

However, we were not been able to locate a single reference to such a law.

The Arkansas Department of Labor:

We called the Arkansas Department of Labor and a representative told us that Arkansas has no law restricting nurse overtime of any sort.

The Arkansas Board of Nursing:

According to the Arkansas State Board of Nursing, the board does not oversee overtime of nurses.

If you are aware of a nursing overtime law in Arkansas, please contact Swipeclock so we can update this information.

Resources

Department of Labor

http://www.arsbn.org/Websites/arsbn/images/Publications/June2016.ASBN80.P4.pdf

California Nurses Mandatory Overtime Law Restrictions

Does California have restrictions on nurses working overtime?

Not surprisingly, California has specific guidelines around nurse overtime. This is important for healthcare providers to understand. AB-2155 prohibits mandatory overtime of nurses.

Who is protected from mandatory overtime?

Effective January 1, 2016, California law prohibited mandatory overtime of nurses.

• Registered nurses
• Licensed-vocational nurses
• Certified nursing assistants

Specific Restrictions on Overtime

The law prohibits scheduled overtime and on-the-spot overtime requests.

In addition, the law prohibits employers from using mandatory overtime as a scheduling tool. It also forbids using it as a tool to overcome the failure to properly staff facilities.

As a result, employers can only require nurses to work overtime in an “emergency situation.” This includes a declared national, state, or municipal emergency.

 

 

What Emergency Situations Allow For Mandatory Overtime?

Emergency situations also include unusual or extraordinary situations that are unpredictable or unavoidable. For example, acts of terrorism, natural disasters, widespread diseases, and declared emergencies.

Plus, a warden, superintendent, and executive director can also declare an emergency.

• National, state or city declared emergency
• Unpredictable situations that affect healthcare
  • Acts of terrorism
  • Natural disasters
  • Widespread diseases
• Hospital declared emergencies

When Can Employers Schedule Nurses for Overtime?

First, the nurse must volunteer or agree to work overtime. Employers scheduling overtime must give priority to employees who volunteer to work overtime.

When employers need more nursing coverage, then they must give the extra hours to part-time or intermittent employees.

Next, employers can assign extra hours to standby or on-call employees.

1. Volunteer nurses who want overtime hours
2. Part-time and intermittent employees
3. Standby and on-call employees

In addition, employers cannot retaliate against nurses who refuse to work scheduled overtime. This includes dismissal, discrimination against, or other forms of penalties.

Can an exhausted nurse refuse to work overtime during emergencies?

Even in an emergency, employers can’t mandate overtime for all employees. A nurse may refuse to work overtime if they have worked 72 hours or more during the previous week. This helps to maintain the quality of healthcare.

California Pay Requirements for Overtime Work are Steeper than Federal Law

California labor law requires premium pay for nurses who work overtime. This applies whether the nurse works voluntarily or mandatorily in emergencies. California law also requires several mandatory breaks.

California Labor Code (sections 500-511) requires that employers pay nurses time-and-a-half for any hours over 8 the nurse works in a 24-hour period. Furthermore, employers must pay overtime for the last 4 hours of a 12-hour shift. If a nurse works over 12 hours in a day, then the employer must pay double time for extra hours.

In addition, employers must give employees at least two rest days in a single week.

• Over 8 hours in a day > 1 ½ times the regular wage
• Over 12 hours in a day > 2 times the regular wage
• Nurses can refuse mandatory overtime when already worked 72 hours in a week.
• 2 days rest provided per week

Even so, an employer and nurse can agree to an alternative work week. This allows up to 12 hours in a shift. Even with an alternative agreement, employers must pay overtime pay for all hours worked over 40 hours in a week.

Best Practices

It is vital for healthcare employers to understand and follow California regulations.

Managers can use a checklist to protect against violations. It should include double-checking employees schedules for the required 2-day breaks, overtime hours, and any employee requests.

Fortunately, it doesn’t have to be that difficult. California employers using WorkforceHub HRMS can set rules for employees.

This can include break guidelines, scheduling, and even employee preferences. When shifts are vacant, WorkforceHub suggests the best employees to fill in for specific shifts. This makes compliance much easier and alerts the manager when overtime hours are scheduled.

Resources

Mandatory Overtime Law

Bill 2155

Connecticut Restrictions on Overtime for Nurses

For most occupations other than nursing, the law allows employees and employers to set up any type of work week, though it limits overtime hours to 80 hours in a 2-week period. The law requires overtime pay for any hours above that.

But the state has exceptions for nurses.

In the law, the term “nurse” refers to a registered nurse, a licensed practical nurse, or a certified nurses aide. The law allows nurses to voluntarily work overtime but restricts mandatory overtime.

What does this mean?

Connecticut defines “mandatory overtime” as overtime without at least a 48-hour notice before the shift starts.

In addition, it provides nurses with the ability to refuse mandatory overtime without fear of retaliation, discipline, dismissal, or discrimination. Employers cannot penalize nurses who refuse to work mandatory overtime.

Clearly, it is crucial that managers stay on top of schedules and schedule changes.

When Can Connecticut Employers Require Nurses to Work Overtime?

There are several exceptions to the prohibition on mandatory overtime for nurses.

First, employers can require nurses to work overtime if the nurse is involved in a surgical procedure until the procedure is completed.

Second, an employer can require a nurse that is working in a critical care unit to work overtime until that nurse is relieved by another nurse starting a shift.

Third, any public healthcare emergency can warrant mandatory overtime.

Fourth, any institutional emergency allows for mandatory overtime. An institutional emergency includes conditions such as poor weather conditions, catastrophic events, or widespread illness. These events could significantly reduce the number of nurses available. The hospital administrator makes the decision regarding a specific circumstance. They should also make good faith efforts to mitigate the shortage of nurses.

Fifth, for union nurses, the employer can require the nurse to work mandatory overtime according to the agreement.

• An ongoing surgical procedure the nurse is involved in
• Critical care unit nurses can be required to stay until a replacement nurse arrives
• Public healthcare emergencies
• Institutional emergencies that limit the availability of nurses
• Union nurses whose collective bargaining agreement allows it

Illinois Restrictions on Mandated Overtime for Nurses

Can employers require nurses to work overtime?

In Illinois, Senate Bill 201 places restrictions on healthcare employers regarding mandatory overtime and nurse scheduling.

Who is protected from mandatory overtime?

The law covers:

• Advanced practice nurses
• Registered professional nurses
• Licensed practical nurses who received an hourly wage and who carry out nursing duties.

The law defines mandatory overtime as any time that extends past an “agreed-to, predetermined work shift.” There are several restrictions on mandatory overtime.

What is the maximum overtime a nurse can work?

It cannot extend to more than 4 hours beyond the shift.

What breaks must employers provide?

When a nurse works 12 consecutive hours in a shift, they must be immediately given at least 8 consecutive hours of rest following the shift.

Employers cannot retaliate against nurses who refuse to work mandatory overtime. This includes discrimination, discipline, or discharge.

1. Mandated overtime only allowed in emergency situations
2. Overtime cannot extend past 4 hours of a shift
3. Maximum shift length is 12 hours
4. If a shift is 12 hours long, then a mandatory rest period of 8 hours must immediately follow
5. Employers cannot retaliate against nurses who refuse to work mandatory overtime that is not due to an emergency

Instances of Allowable Mandatory Overtime

During an “unforeseen emergent circumstance,” the law allows mandatory overtime. Like other states, Illinois recognizes that certain emergencies make it necessary for nurses to work mandatory overtime for the good of the public health.

Unforeseen emergencies include any declared state, federal or city emergency.

It also includes any situation that causes an implementation of a hospital’s disaster plan. These situations must affect or increase the need for healthcare services.

It includes times when patient care needs require specialized nursing skills through the completion of a procedure.

Exceptions to Mandatory Overtime Allowances

Situations where the hospital failed to have enough nurses to cover the usual and reasonably predictive nursing needs are not covered.

Thus mandatory overtime cannot be used as a “scheduling tool.”

Further, the law does not prohibit hospitals from requiring off-duty nurses to report to duty. It also doesn’t prohibit overtime in general if the overtime is agreed to.

Although nurses can refuse to work mandatory overtime, they can’t refuse to work during scheduled hours.

• Does not cover failure to schedule enough nurses for the predictable needs of the hospital
• Voluntary overtime is allowed
• Nurses cannot refuse work during scheduled hours

Illinois Employers, Fill Vacancies Through These Steps

This is very important!

Illinois hospitals should get a signed release consenting to overtime. This is vital when a nurse alleges that overtime was mandatory and not voluntary.

On-call lists cannot be used to fill scheduling gaps when the need was foreseeable or chronic.

But, volunteer lists can be used to fill schedule vacancies. They can also be used as a first resource during emergencies.

Also, hospitals can use on-call nurses, agency and per diem nurses to fill in during emergencies.

Hospitals that use a Human Resources Management Systems (HRMS) find the process quicker and simpler. Managers can create schedules in advance and publish them in an app. Because of this, it frees up managers’ time for other important work.

To recap, Illinois healthcare employers can use the following methods for overtime compliance:

• Maintain a volunteer list of nurses seeking overtime
• Obtain written consent to protect against dispute
• Use on-call nurses for emergency situations
• Use per diem and agency nurses to cover shortages
• Use HR software with an advanced scheduling tool

Resources

Illinois Law

Maine Overtime Laws For Nurses

Maine labor law restricts employers from requiring employees to work overtime. The law defines overtime as more than 80 hours in a 2-week period.

Except, employers can require nurses to work more than 80 hours in a two week period.

But, that’s not all. 

The law allows nurses to refuse mandatory overtime after working 12 required hours.

When a nurse has worked 12 hours, then they must be given at least 10 hours following the work period.

• Maximum shift of 12 hours
• 10-hour rest required after a 12-hour shift

Nurses who refuse mandatory overtime cannot be punished.

Except, when there is an emergency, employers can discipline nurses for refusing to work overtime.

Resources

Maine Overtime Law

Maine Labor Law

Maryland Labor Code: Involuntary Overtime Prohibition for Nurses

Maryland wage and employment law (2010 Title 3, Subtitle 4 Section 3-421) expressly prohibits involuntary overtime.

Maryland law covers both licensed practical nurses and registered nurses.

Are employers prohibited from using nurse overtime?

Nurse overtime is not forbidden. But, it must be scheduled overtime.

Employers cannot require a nurse to work additional overtime above what is scheduled. Because of this, employers need to create a predetermined work schedule.

When Can Employers Require Nurse Overtime in Maryland?

There are many exceptions that allow mandatory overtime. But, the following points must be met to qualify.

1. An emergency situation occurs that can not be reasonably anticipated.

2. It is not recurring. The emergency cannot be caused or aggravated by the employer’s inattention or lack of contingency planning. To this point, failure to plan for sick employees around holidays doesn’t count as an acceptable reason to mandate overtime.

3.  The employer has exhausted all good faith, reasonable attempts to use voluntary workers during the succeeding shifts.

4.  The nurse has critical skills that are required for the work.

5.  The standard of care for a patient requires continuity of care until completion. This can include completion of a case, treatment, or procedure. When that happens, the employer must inform the nurse of the basis of the employer’s direction to require overtime. Plus, that decision must include and satisfy the other conditions required above.

• Unanticipated emergency situation
• Emergency is non-recurring
• The employer has exhausted all good faith efforts to get other help for the shift
• The nurse has critical skills needed for the work
• The employer must inform the nurse of the basis for their decision

There are other scenarios when employers can require mandatory overtime.

It is allowed if the nurse’s contract allows for mandatory overtime.

It is also allowed if a condition of employment included overtime.

• The nurse’s condition of employment included on-call rotation
• When the nurses works in a community-based hospital

Important information for employers!

The law also makes employers responsible for patient care after a nurse’s predetermined work schedule is over.

Maryland law releases nurses from patient care once two things have happened. The nurse must notify another nurse of the patient’s status and transfer responsibility.

Scheduling Solutions for Maryland Employers

• Maintain a volunteer list of nurses who are willing to work additional overtime.
• This list can be as simple as an Excel spreadsheet, but specialized HR software makes it easier.
• Employees can update the list regularly according to their own needs and preferences.
• Employers can also use on-call nurses, per diem nurses, and agency nurses to fill in for emergencies.

Resources

Maryland Labor & Wage Law

Massachusetts Law Restricts Nurse Schedules and Overtime Requirements

Massachusetts law restricts hospitals from requiring mandatory overtime, except in certain situations. The law restricts a maximum shift of 12 hours per 24 hour period.

The law also restricts employers from scheduling nurses to work outside of regularly scheduled shifts.

In an emergency where the care of a patient will be compromised, however, mandatory overtime is allowed.

But,

The hospital must make a good faith effort to fill overtime needs with volunteers, even when mandatory overtime is required.

As with other states, employers can’t use mandatory overtime as a scheduling tool.

When Can Employers Require Nurses to Work Mandatory Overtime?

Following the law’s passing, the commission defined allowable emergencies. They must be “rare and unusual.” For example, municipal, state, and national emergencies.

For example the Boston Marathon bombing would qualify. Other examples include multiple auto accidents, a building collapse or chemical spill.

Allowable emergencies include major catastrophic events. They include major storms, acts of terrorism, or a major internal hospital disaster.

Internal hospital disasters include events like a power outage, a riot inside the hospital, or an unexpected system outage.

• National, state, and local emergencies
• Major catastrophic events
• Acts of terrorism
• Major internal hospital disaster
• Major storm

Cold and flu season and staff shortages do not qualify.

Further Limitations on Nurse Schedules

Even when an employer requires overtime, they cannot allow a nurse to work longer than a 16-hour shift in a 24-hour period.

When a nurse works a 16-hour shift, the employer must provide a rest period of at least 8 consecutive hours

The Process Employers Must Take to Require Mandatory Overtime  

Before using mandatory overtime, hospitals must first seek reasonable alternatives. This is the case even in emergencies.

But it also works during schedule shortages.

Employers must post schedules 4 weeks out, utilize float pools and per diems.

Will a spreadsheet do the job?

Excel spreadsheets can be cumbersome.

Hospitals must maintain a spreadsheet of all nurses who are willing to work additional hours. This includes who is available when, and who is willing to be on-call.

The spreadsheet should include certifications for skills-based shifts.

There is an easier way!

Fortunately, hospitals using WorkforceHub can easily manage all these requirements.

Managers create schedules templates, copy forward and publish electronically. Nurses can request time-off in the app as well. Managers can also maintain a shift trade board where nurses can volunteer for open shifts.

When shift shortages occur, the system can track and organize a list of who is available and who has the required skills. In addition, it tracks overtime thresholds and other pertinent information.

This makes it seamless for a manager who is trying to fill a gap in the schedule.  

Lastly, when hospitals do require mandatory overtime, they are required to report it the Department of Public Health. The reports are considered public property.

Resources

Massachusetts Nurse Association

Michigan Lawmakers Look at Law Regarding Nurse Schedules

What’s happening with Michigan law?

Michigan legislators are considering the Safe Patient Care Act that would ban involuntary overtime of nurses. This legislation has been pending for years.

This means that:

Critical care patients, operating rooms, and advanced labor patients must have a nurse-patient ratio of 1:1.

It limits patients such in the nursery, surgical, telemetry to 3 or 4 patients to nurses. It depends on the specific patient status.

The bill penalizes hospitals who use mandatory overtime in any situation that is not an “unforeseen emergent situation.” Hospitals can be fined a minimum of $10,000 and a maximum of $50,000 per incident of mandatory overtime.

When can employers require overtime?

Qualifying emergency situations must be unpredictable, unavoidable, and unscheduled intervals.

The bill specifically states that emergencies that result from labor disputes does not qualify as an emergency.

HB 4630 protects registered nurses from administrative action for refusing to “work more than his or her regularly scheduled hours.” It also prohibits employers from requiring a nurse to work more than their required schedule.

Shift limitations?

The bill would restricts shifts of more than 12 hours.

Rest requirements?

If a nurse does work 12 or more consecutive hours, then the hospital must provide the nurse with at least 8 consecutive hours of off-duty time. The employer must provide the rest time immediately following the shift.

HB 4630 also defines three specific situations that would allow mandatory overtime. Any unforeseen emergency situations count but are not defined in the bill. It also allows nurses to voluntarily agree to overtime.

Resources

Proposed Michigan Bills

Minnesota Regulations Regarding Nurses Overtime and Shift Limitations

Minnesota overtime law varies from most other state laws and from federal law.

How?

Minnesota, overtime is set at 48 hours a week instead of the usual 40 hours a week.

So I don’t have to pay overtime for 40-48 hours a week?

Not exactly–the law only applies to businesses that are not interstate companies and are small employers.

That’s not all,

Minnesota has another important part of their overtime law. It pertains to healthcare employers and the nurses employed. Minnesota law defines a normal work week as a predetermined shift of 12 or fewer hours in a day.

This is important because employers must realize that nurse shifts should be scheduled. Furthermore, the maximum shift allowed is 12-hours.

Plus,

The law prohibits healthcare employers from taking any action against a nurse who refuses to work mandatory overtime. This includes both state nurses and private employer nurses.

Can nurses volunteer to work overtime?

The law does not forbid voluntary overtime, but it does limit the maximum hours to 12 in a shift.

And it prevents employers from taking negative action against a nurse who refuses to stay after a shift to work more hours.

Minnesota Allows Nurse Overtime in These Situations

The one exception that allows mandatory overtime is in the case of an emergency.

What counts as an emergency?

An emergency is defined as any time replacement staff is not able to report to duty or an event that causes an increase in patient need.

These events have to be unusual, unpredictable, and unforeseen. It includes acts of terrorism, disease outbreaks, adverse weather conditions or natural disasters.

• Emergency
  • Acts of terrorism
  • Disease outbreaks
  • Adverse weather conditions
  • Natural disasters

Employers, Be Aware of These Protections

Minnesota law protects nurses that refuse to work mandatory overtime in non-emergency situations.

Employers cannot report them to the Board of Nursing or discipline, threaten, or discriminate against those nurses. The law also prevents changes to benefits, pay, terms of employment, or other privileges of employment.

What’s the Best Way For Healthcare Employers To Stay Compliant and Have the Needed Coverage?

One of the easiest ways for employers to juggle nurse scheduling is through workforce management tools. Unified HR systems like WorkforceHub allows managers to easily create complex nurse schedules.

Here’s another important thing to do:

Employers should also consider having on-call nurses available during times with a potentially higher volume of patients. Agency and per diem nurses are another alternative to prevent mandatory overtime.

• Schedule effectively with an HR like WorkforceHub
• Maintain volunteer lists
• Use on-call nurses, agency and per diem nurses to cover for shortages

Resources

Minnesota Regulations

Missouri Department of Health Rules Against Mandatory Overtime for Nurses

Missouri health code restricts employers from requiring mandatory overtime from nurses.

The law defines overtime as any time worked in addition to a scheduled, predetermined shift. It must also not exceed 12 hours a day or 80 hours in a 2-week period.

• In excess of a scheduled shift
• More than 12 hours in a day
• More than 80 hours in 2 weeks

There is an exception defined as when an “unexpected nurse staffing shortage” arises and poses a substantial risk to patients. This can be due to emergencies and other unexpected situations.

Before Missouri employers require mandatory overtime, they must first exhaust all reasonable efforts to secure staffing. The need for nurses must not be due to chronic staffing shortages.

Employer Responsibilities During Nursing Shortages

When a shortage happens, employers must make a reasonable effort to secure replacement staff before requiring mandatory overtime.

Employers who need to secure extra nursing staff must take several steps first.

First, the employer can re-assign qualified staff that is currently on-duty.

Secondly, the employer can ask working nurse to volunteer. If any nurses want to stay longer to cover needed gaps, this is allowed.

Next, managers must contact all the off-duty staff that have volunteered for extra hours.

WorkforceHub can help employers comply with Missouri healthcare overtime laws. With WorkforceHub, managers can update individual schedule requests and availability at any point.

This makes it easier for managers to quickly find substitutes.

Employers can also utilize per diem nurses, float pool and flex team nurses.

Lastly, when local laws and union agreements allow it, the employer can seek substitute nurses from a temporary staffing agency.

• Reassign on-duty staff
• Seek voluntary overtime from staff currently working
• Contact off-duty staff who made themselves available for extra work time
• Utilize per diem, float pool, and flex team nurses
• Seek extra staff from a temporary staffing agency

After an employer has tried to fill vacancies, they can require nurses to stay and continue caring for patients.

Exceptions to the Restriction on Mandatory Overtime

Did you know?

There are several exceptions to the restrictions to mandatory overtime.

First, employers can use a section of nurses who commit, in writing, to a predetermined staffing schedule or an on-call schedule. These nurses can be called and required to work overtime during nurse shortages.

Additionally, an unforeseeable emergency allows for mandatory overtime. This is defined as a situation that is unusual, unpredictable, and unforeseeable. The definition is similar to other state laws. It includes any national, state or municipal declared emergency. It includes acts of terrorism, a disease outbreak, adverse weather conditions, and natural disasters.

• State of emergency
• Act of terrorism
• Disease outbreak
• Adverse weather conditions
• Natural disaster

When a nurse does work a 12-hour shift, the employer must provide a minimum of 10 consecutive hours of off-duty time.

Missouri employers are also required to have a list of nurses that can be shared with the Department of Health.

Missouri Nurse Code

Amendment to the law

New Hampshire Mandatory Overtime for Nurses and Assistance Regulations

New Hampshire’s labor law prohibits mandatory overtime for nurses.

It covers all registered nurses, licensed practical nurse, and licensed nursing assistants.

What is the definition of overtime in New Hampshire?

The state sets the definition of overtime as time above 12 consecutive hours.

This means that. . .

Employers cannot retaliate against nurses for refusing to work overtime. The law states that nurses shall not be “disciplined, or lose any right, benefit, or privilege” for refusing to work.

When a nurse works over a 12-hour shift, the employer must provide them at least 8 consecutive hours off-duty immediately following.

Also,

There are a few exceptions to the law against mandatory overtime. If a nurse refuses to work mandatory overtime in certain exceptions, then the nurse may be disciplined for refusing to work.

Exceptions to the Prohibition of Mandatory Overtime in N.H.

There are 5 exceptions to the law.

1. A nurse that is participating in a surgery must work until the surgery is complete.
2. Nurses working in a critical care unit must work until another employee beginning a scheduled work shift relieves them.
3. A home healthcare nurse must work until another qualified nurse or customary caregiver relieves him or her.
4. Nurses covered by a collective bargaining agreement are exempt from the law. This is because the law recognizes the union agreement and rights of the nurses.
5. Finally, during a public health emergency, nurses can be required to work mandatory overtime.

New Hampshire law doesn’t define public health emergencies. Situations that can be reasonably assumed to count are natural disasters, federal, state or city declared states of emergency, widespread outbreaks of disease and similar events.

• Nurse in an ongoing surgery
• Critical care unit nurse until a replacement comes
• Home health care setting until a replacement comes
• Public health emergency
• Union nurse

Resources

New Hampshire Legislation

New Hampshire law

New Jersey Mandated Overtime Restrictions

The New Jersey law that covers overtime is called the “Mandated Overtime Restrictions for Health Care Facilities.” 

The law restricts healthcare employees from working more than 40 hours a week.

What’s unique about the New Jersey law?

New Jersey is unique because its law does not just cover nurses.

Who is covered?

Hourly workers who are involved in direct patient care or clinical services are covered. There are several exceptions to employees covered by the law.

Who is exempt from the law?

Physicians, volunteers, and on-call employees are exempt from the law.

In addition, employees who volunteer to work overtime are exempt.

Licensed employees who work for an assisted living facility and receive room and board as part of their compensation are also exempt.

And,

Employees who are participating in a surgical procedure that is in process. The procedure can be a surgical one or a therapeutic interventional process.

Lastly, employees not directly involved with patient care are exempt from the protections of the law.

Employees NOT covered

• Physicians
• Volunteers
• Employees working voluntary overtime
• Employees who are given room and board as part of their compensation
• On-call employees
• Employees involved in a surgical or therapeutic procedure
• Employees not involved with direct patient care

Exceptions to New Jersey’s Overtime Law

The exception to this is in an “unforeseeable emergent circumstance.”

The law defines those as situations that are unpredictable, unavoidable, and occur at unscheduled intervals. In unforeseeable emergencies, employers must make a good faith effort to avoid mandatory overtime.

During a national, state. or municipal emergency, employers are not required to make good faith efforts to avoid mandatory staffing.

State or municipal emergencies include disasters or catastrophic events that drastically increase the need for health care services. Plus, Any emergency that causes a facility to activate its emergency or disaster plan.

Employer Responsibilities

Reasonable efforts include four main steps to fill the needed shifts.

These steps include seeing for volunteers from staff currently working at the time of the emergency.

It includes contacting all qualified employees who have made themselves available to work extra hours.

It also Includes the use of per diem staff is another effort employers should make.

Lastly, seeking help from a temporary agency when that is allowed by law, regulations, or collective bargaining agreements.

1. Volunteers from qualified staff currently working at the time of the emergency
2. Contacting all the staff that have made themselves available for extra hours
3. Per Diem staff
4. Temporary agency staff

Here’s another thing you can do as an employer:

Employers can maintain an excel spreadsheet and update it manually quarterly or monthly.

Were you aware that?

It is especially easy with Swipeclock to maintain a list of staff that has made themselves available for overtime purposes. Staff can log into an employee portal and change their availability anytime they have free time.

Employer Documentation Responsibilities

Employers must be careful not to require mandatory overtime to fill vacancies from chronic short staffing.

In addition, when requiring overtime, the employer must give the employee up to a full hour, to arrange for the care of the employee’s minor children or disabled or elderly family.

Don’t forget this requirement

Employers who do require mandatory overtime must document it. They must record good faith efforts to prevent it. New Jersey is specific in this respect. The employer must document:

• Employee’s name and title
• The employee’s work area or unit
• Date the overtime was worked, including start time
• Number of hours that were mandated
• The employee’s entire daily schedule for any week that the employee was required to work overtime
• The reason why the overtime was necessary
• A description of the employer’s “good faith” efforts. This includes the names of employees contacted to work voluntary overtime, a description of the efforts to secure per diem staff, and a list of the temporary agencies contacted.
• A signature of the person authorizing mandatory overtime.

In addition, the employers must provide these records  to the employee. The employer can’t retaliate if the employee complains to anyone and in any manner for working mandatory overtime. Employees have two years to file a complaint about mandatory overtime.

This means that:

It is important for employers to maintain automatic records such as the employee’s schedule, worked hours, and whether or not the employee volunteered for overtime.

As mentioned previously, WorkforceHub automatically retains scheduling records.

Resources

New Jersey Labor Law

New York Employment Law Restricts Involuntary Overtime

The New York Department of Labor restricts mandatory nurse overtime. Healthcare employers cannot assign mandatory nurse overtime except in specific circumstances.

But,

Unlike other states, New York does not limit the restriction on overtime to nurses or hospital employers.

Employees Protected From Mandatory Overtime in NY

New York law coverts any entity that provides health care services. For example, it includes those licensed under article 28 of the health care law.

That means,

It includes hospitals, nursing homes,  and outpatient clinics. It includes rehabilitation hospitals, residential health care facilities, and residential drug and alcohol treatment facilities. Plus, it includes adult day health care programs and diagnostic centers.

What types of employees are covered?

The law covers all nurses. This includes part-time, full time, and per diem nurses. It includes registered professional nurses and licensed practical nurses.

• Part-time, full time, per diem nurses
• Registered professional nurses
• Licensed practical nurses

What shifts are prohibited for nurses in New York?

The law prevents an employer from requiring a nurse to work beyond their regularly scheduled work hours.

Which means,

Regularly scheduled hours are defined as the hours a nurse has agreed to work and is normally scheduled to work.

It includes pre-scheduled on-call time and time spent communicating shift reports and patient status.

What does this mean for overtime hours?

The law does not forbid overtime work by nurses. It allows for scheduled overtime, as well as voluntary overtime.

• Scheduled overtime is ok
• Voluntary overtime is ok

But,

The New York State Board of Nursing seeks to prevent nurses from voluntarily working more than 16 hours in a 24-hour period.

Nurses who volunteer for long shifts are at risk of “willful disregard for patient safety.” They can be subject to “potential charge of unprofessional conduct.”

As a result, employers must be aware that:

Nurses who work extreme overtime are at risk of unprofessional conduct.

This is especially true if a nurse makes a mistake due to fatigue. Extreme overtime is working a 16-hour shift.

It also places the employer at risk.   

And, did you know?

New York also protects part-time nurses. Because mandatory overtime is defined as any work beyond the scheduled shift, part-time nurses are also covered.

Exceptions to Overtime Restrictions

When can employers require overtime?

New York law has one exception that allows for required overtime. That is in an emergency. This can cover many different types of situations.  

One of those situations would be a health care disaster.

This includes natural disasters, fires, automobile accidents, or a building collapse.

In addition, it include chemical spills and widespread outbreaks.

In addition, it includes any disaster that increases the need for healthcare personnel in the county or neighboring county.

Another situation would be a declared state of emergency. This would include any national, state or county declared emergencies.

A third situation is an emergency requiring overtime to provide safe patient care. This situation requires that the employer has followed the Nurse Coverage Plan. And the use of that plan fails to produce adequate shift coverage.

Lastly, the employer can require overtime when a nurse is actively engaged in an ongoing medical procedure.

The nurse’s manager or supervisor must make that determination, not administrators or physicians.

• Healthcare disaster: natural disasters
• Declared State of Emergency: county, state or nation
• “Emergency requiring overtime to provide safe patient care”
• Ongoing medical or surgical procedure

Employer Responsibility to Create Staffing Plans

As an addition to Section 167, then Governor Pattersen, signed “emergency” regulations into law. They require health care employers to create and implement Nurse Coverage Plans.

The plan must identify and describe alternative staffing methods that a healthcare provider will use instead of mandatory overtime.

Plans must take into account regular patterns of absences by nurses and typical skill level of care usually required by patients. The plans must be available to staff, union reps, and state officials.

Healthcare facilities that require mandatory overtime must document the steps they take to avoid mandatory overtime.

• Nurse Coverage Plans
  • Identify alternative staffing methods
  • Account for regular patterns of absences
  • Track skill level required by patients
  • Plan must be available to staff, union reps, and state officials

Employer Responsibilities To Protect Against Overtime

New York law lists acceptable steps employers can take to avoid mandatory overtime. Alternative staffing include per diem nurses, nurse registries, and employment agencies.

Plus, it includes assignments for nursing floats.

And, it includes requesting an additional day of work from an off-duty nurse.

It also requires developing and posting a list of nurses seeking voluntary overtime.

• Use of Per diem nurses, agency and nurse registry staff
• Nurse floats that can be assigned
• An extra day of work for day-off nurses
• Voluntary overtime list
• Scheduling on-call nurses

Resources

NYS Labor Law

NYS Nursing Practice

Ohio House Proposes 2018 Bill To Restrict Mandatory Overtime

Did you know?

In June 2021, the Ohio House of Representatives passed a bill that would make mandatory overtime for nurses illegal.

Currently, nurses face discipline for abandoning a patient. The proposed law would change that so when a nurse feels too fatigued to work more, they can refuse.

The bill covers registered nurses and licensed practical nurses.

Additionally, the bill would require hospitals to create a staffing plan that ensures the minimum number of nurses needed for patient care.

Similar to other states, the bill defines mandatory overtime as any work that in excess of a scheduled shift.

“Prioritizing safe nurse staffing benefits everyone: nurses, patients and healthcare facilities. Research points to dissatisfied patients, increased errors and higher patient readmissions when nurses are not safely staffed. Furthermore, nurse burnout increases with regular extended shifts, leading to costly nurse turnover for healthcare facilities. The needs and safety of the patient and nurse need to be put first instead of trying to cut initial costs by using mandatory overtime to plug nurse staffing holes.” Ohio Nursing Association president, Brian J. Burger, MSN APRN AGACNP-BC CCRN.

If the nurse receives notice during the shift of the required overtime and it extends the shift’s length, then the extra time is considered mandatory overtime. It does not cover excess shift lengths that are scheduled ahead of time.

The bill provides several exceptions to hospitals requiring mandatory overtime. First, any national, state or county declaration of an emergency that covers the hospital’s service area qualifies for mandatory overtime. Second, an emergency, unforeseen event, or influx of patients.

Lastly, if the nurse is involved in an ongoing medical treatment or surgical procedure, then the employer can require the nurse to complete the procedure.

Resources

The entire bill and the status of the bill can be found here.

https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA132-HB-456

Oregon Nurse Staffing Law

In 2016, Oregon’s Nurse Staffing Law went into effect.

The law covers two main components. First, hospitals must create a Nurse Staffing Advisory Board.

What does the board do?

The board must provide advice on how to comply with the law. It must identify trends concerning nurse staffing.

It submits an annual report to the Oregon Health Authority. There are other duties the board must also do.  

The second component of the law covers mandatory overtime of nurses.

The law prohibits employers from requiring a nurse to work “beyond the agreed upon and prearranged shift.”
And,

It specifically states that this rule applies “regardless of the length of the shift.”

Thus, it covers even part-time shifts.

But,

The law does not prevent a nurse from volunteering to work overtime.

Yet,

If a nurse volunteers to work overtime, then the nurse is responsible to ensure that they are competent and able to provide safe care.

Oregon Shift Restrictions for Nurses

Know this:

When a nurse works a 12 hours shift, then the hospital must provide the nurse with a minimum of 10 consecutive hours off.

Plus,

Nurse shifts are limited to a maximum shift of 12 hours in a 24 hours period.

The 24 hours period starts at the beginning of the shift.

And, nurse work hours must be limited to 48 hours in a week.

• 12 Hrs maximum shift
• 10 hours of time-off duty required afterward
• 48 Hrs maximum work hours in a week

What Situations Allow Employers to Require Mandatory Overtime From Nurses?

There are a few exceptions to the law.

First, if a hospital learns of staff vacancy for the next shift, then they may require the nurse to stay an additional hour.

Secondly, if there is potential harm to the patient if the nurse leaves or assigns care to another, then the hospital can require the nurse to stay.

Lastly, if the hospital can require extended shifts in the case of a national, or state emergency. This exception also works if the hospital implements a facility disaster plan due to sudden unforeseen adverse weather conditions or infectious disease epidemic that is suffered by the hospital staff.

• Vacancy in the next shift allows for 1 hour of mandatory overtime for working nurse
• An on-going surgical procedure that affects the care of the patient
• Declared emergency: national, state or local
• A situation that activates the hospital’s disaster plan

What Happens When Mandatory Overtime is Used?

The law requires employers keep records of nurse staffing. While the law isn’t specific in the exact information required, it would be wise for employers to retain records regarding nurse schedules, agreed upon shifts, actual hours worked, and pay information.

• Nurse schedules
• Agreed upon shifts
• Actual hours worked
• Pay information

In addition, hospitals should maintain records regarding any volunteer lists for overtime, situations of emergencies with mandatory overtime and the steps taken to avoid it.

• Nurses who volunteered for overtime
• Records of when mandatory overtime was used
• Steps taken to avoid mandatory overtime

Employers can utilize on-call nurses, per diem, and agency nurses to fill in for unexpected shift vacancies.

• On-call nurses
• Per diem nurses
• Agency nurses

The law doesn’t allow more than one hour of mandatory overtime due to a shift vacancy so creating a plan is essential for patient care.

Resources

SB 469

https://www.oahhs.org/sites/default/files/F-Oregons-New-Nurse-Staffing-Law-SB-469.pdf

Pennsylvania’s Prohibition of Excessive Overtime in Health Care Act

In Pennsylvania, a “health care facility cannot require an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift.”

Employers cannot require employees who have an 8-hour shift, to work more than their scheduled shift.

Plus,

Employers cannot retaliate against employees who refuse to work overtime.

• Mandatory work beyond a scheduled and agreed to shift is prohibited
• On-call cannot be used to substitute for mandatory overtime
• Employers cannot retaliate against an employee who refuses to work overtime

The law does not stop healthcare providers from scheduling employees for shifts that are more than 8 hours.

It’s important to understand;

The law doesn’t prevent employees from volunteering for overtime. And, employers are still allowed to hire part-time or per diem employees.

• Nurses CAN volunteer for overtime
• Managers CAN schedule employees for more than 8-hour shifts
• Employers CAN use part-time and per diem employees
• On-call overtime IS allowed

Covered Employers and Employees Under the Act

Pennsylvania employers that fall under the law include hospitals of all kinds.

This includes psychiatric or rehabilitation hospitals, hospices, ambulatory surgical facilities, nursing facilities, cancer treatment centers using radiation therapy and inpatient drug and alcohol treatment facilities.

And,

The law governs public facilities that provide clinically related health services. This includes the Department of Corrections, the Department of Health, the Department of Military and Veterans Affairs, and the Department of Public Welfare.

Covered Employees Protected From Mandatory Overtime

Employees protected under the those who provide patient care.

There are three qualifications for employees who are covered.

Do you know what those qualifications are?

This includes individuals employed by a healthcare facility. It includes state employees, state instrumentalities, or political subdivisions.

In other words,

It covers city and county-run health care providers. Political subdivisions include a county, municipality or town, school district, or a local government.

It also covers,

Employees that provide direct patient care or clinical care services.

But,

Covered employees must receive an hourly wage.

If the employee is a union employee then they must be classified as a nonsupervisory employee in the collective bargaining agreement.

• Employees of private and government-run facilities
• Employees who provide direct patient and clinic care and services
• Employees who receive an hourly wage

Pre-Scheduled Longer Shifts

What happens when employees work 12 hours or more?

The law requires a 10 hour rest period for employees who work 12, or more, hours.

This means that,

Immediately following the shift, employees must be given 10 hours of consecutive off-duty time.

But, it’s also important to know that,

Employees can waive their time to time off.

What Qualifies as an Unforeseeable Emergent Situation and Allows for Mandatory Overtime of Nurses and other Healthcare Staff?

“Unforeseen emergent circumstance” is legal code for an emergency. It can include an unforeseeable national, state, or city declared emergency.

It can also include an unusual or extraordinary event that is unpredictable and unavoidable. The event must also affect the provisions of needed health care services. Or, it must increase the need for health care services.

Plus, it includes “unexpected absences.”

This does not include shortages from chronic staffing shortages. While it must be affected patient safety, it cannot be something that could be prudently planned for by the employer.

So,

Vacation leave by employees does not count.

• National state or city emergency
• Act of terrorism
• Natural disasters
• Widespread disease outbreak

Employer Solutions for Compliance

Check out this section for a comprehensive guide of steps managers can take to avoid mandatory overtime in a pinch.

Employers don’t require overtime because of a lack of regard or appreciation for employees. Usually required overtime is a result of scheduling conflicts.

Overtime costs employers higher hourly wages than regular shifts. This makes it undesirable for most employers.

But,

Healthcare employers care deeply about patient care. When a provider calls in sick, goes on vacation or has another unexpected emergency, the employer often has little choice but to ask for overtime.

Let’s not forget,

The difficulty that employers have in hiring and training quality care providers in an ever increasing world of competition.

Fortunately,

There are several steps that employers can take to avoid imposed overtime. Some of these steps are outlined in Pennsylvania law and others are not, but make the process easier for employers.

1. Seek employees to volunteer to work extra time from all available qualified staff working at the time of the emergency
2. Contact all employees who have made themselves available to work extra time
3. Use per diem staff
4. Use staff from a temporary staffing agency

It is important for healthcare facilities to stay compliant. Pennsylvania penalizes employers between $100 and $1000 per violation.

Healthcare providers will find that while manual scheduling is always an option, workforce management software will maximize scheduling effectiveness. Employees can volunteer for extra hours. Managers can sort employees by voluntary availability for overtime, qualifications, and other information.

Resources

Pennsylvania Law regarding mandatory overtime

Q&A

Other resources

http://www.dli.pa.gov/Individuals/Labor-Management-Relations/llc/act-102/Documents/Act102ppt.pdf

Rhode Island Department of Labor Nurse Staffing Law Regarding Overtime

Mandatory overtime for nurses is prohibited in Rhode Island.

What employees does the law cover?

The law covers hourly nurses and certified nurse assistants that are involved in direct patient care or clinical services.

• Hourly nurses
• Certified Nurse Assistants

It does not cover:

• Resident physicians
• volunteers
• certified nurse anesthetists
• salaried employees
• employees who volunteer to work overtime
• prescheduled surgical employees working “on-call time.”

Which employers are covered by the law?

Employers who are required to abide by the law include all hospitals, private, public, and state.

What does the law require?

Rhode Island law requires that employers have a predetermined and agreed-upon schedule. Those schedules can be for 8, 10 and 12-hour shifts.

Rhode Island Restrictions on Healthcare Employers

Employers are not allowed to required employees to work more than those shifts except in an unforeseeable emergent circumstance.

It is important to understand that:

Even in an emergency, health care employers cannot require a nurse to work more than a 12-hour shift.

Nurses can volunteer to work more than a 12-hour shift, but all work over 12 consecutive hours must be voluntary.

Protection Against Overtime Refusal Retaliation

Employees who refuse to work overtime cannot be punished, discriminated against, retaliated against, dismissed or penalized.

Exceptions That Allow Mandatory Overtime

The restriction on mandatory overtime has one exception. The law waives the restriction in “unforeseeable emergent circumstances.”

During an emergency, employers can use mandatory overtime as a last resort.

Employers, take note.

Chronic short staffing does not count as an emergency. Employers must make reasonable efforts to fill vacancies.

What Counts as “Reasonable Efforts” to Find Replacement Staff?

Reasonable efforts include seeking volunteers from staff that is currently working at the time of the emergency.

It also means contacting staff that has made themselves available to work extra time. Employers can also utilize per diem staff.

1. Seek volunteers from on-duty staff
2. Contact off-duty staff who have made themselves available for extra work
3. Use per diem staff

Did you know?

Unforeseeable emergent circumstances include other unpredictable or unavoidable situations that require immediate action.

This includes situations such as a major power outage, a public health emergency, or an irregular increase in patients. It includes an irregular increase in the number of employees who don’t report for work.

In these situations, healthcare employers must make reasonable efforts to avoid mandatory overtime. The maximum shift is 12 consecutive hours.

• Power outage
• Public health emergency
• Irregular increase in patients
• Irregular increase in no-show employees

Here’s another exception.

Employers are not required to make reasonable efforts to avoid mandatory overtime in the event of national, state, or municipal declared emergency. It is also waived in any disaster or catastrophic event which substantially affects or increases the need for health care services or that causes a facility to activate its emergency or disaster plan.

• National, state, city declared emergency
• Catastrophe or disaster that drastically increases the need for health care services
• An event that causes a hospital to activate its emergency plan

Employers can pre-schedule on-call time in the surgical department that can be used for mandatory overtime. Otherwise, on-call time cannot be used as a substitute for mandatory overtime.

Don’t forget this.

Another requirement that the law requires is that employers must keep good records. This includes records of all mandatory overtime. It should include when employees worked over 40 hours in a week or any excess work beyond the pre-scheduled shift.

Employers must track many things including:

• The employee’s name
• Job title
• The name of their work area
• Date overtime was worked, including start time
• The number of mandated overtime hours
• The employee’s work schedule for the week overtime was required
• The reason that overtime was necessary
• A description of all reasonable efforts made to avoid mandatory overtime
  • The names of all employees contacted for voluntary overtime
  • A description of all efforts to secure per diem staff
  • A list of temporary agencies contacted
  • The signature of the individual who authorized mandatory overtime

Employers must give a copy of the documentation to any employee who is required to work overtime. This must occur within 10 days of the mandatory overtime. Records must be kept for at least 30 days. Longer, if a complaint is in process.

Be aware that.

Employers who violate the law are subject to a $300 fine per violation.

There is an easy solution.

Employers can more effectively respond to unexpected absences and other issues regarding nurse coverage through Swipeclock’s WorkforceHub.

Resources

http://www.dlt.ri.gov/ls/pdfs/HealthcareStaffRR08.pdf

Texas Staffing Law Prohibits Mandatory Overtime by Nurses

Texas takes a slightly different approach.

Texas’ Staffing Law protects nurses from the requirements to work past their scheduled shifts

The law adds sections 257 and 258 to the Texas Health and Safety Code. These sections address nurse staffing and mandatory overtime by nurses.

According to the code:

Hospitals must adopt, implement and enforce a written nursing staffing policy. They must also create a nurse staffing committee. The committee must evaluate how many and what skill levels are needed for patient care. The policy must take into consideration the committee’s recommendations and evaluations.

Hospitals must enforce the staffing plan, use the plan to create a nursing staff budget, and encourage nurse input.

They must protect nurses from retaliation for input. And, they must ensure compliance with other regulations.  

That’s not all.

In addition, section 128 prohibits mandatory overtime requirements of nurses. The law defines mandatory overtime as any required time outside of a scheduled shift.

The law cites concerns over the care provided by fatigued nurses but doesn’t define a limit on the number of nurse hours scheduled.

Situations That Permit Mandatory Overtime of Nurses by Texas Employers

Did you know?

There are several exceptions to mandatory overtime. These emergencies apply to the county of the nurse’s occupation, not the residential county of a nurse.

The first exception is a health care or natural disaster. It must unexpectedly affect the county or a neighboring county. It must increase the need for healthcare professionals.

In other words,

The emergency doesn’t “regularly occur.”

The second exception is a federal, state, or county declared emergency.

The third exception is irregular emergencies and unforeseeable events which increase the need for safe patient care and which could not be predicted by the hospital.

The last exception is if the nurse is engaged in an ongoing medical or surgical procedure and the continued presence of the nurse through the completion of the procedure is necessary to ensure the health and safety of the patient.

1. Healthcare or natural disaster which increases the need for healthcare personnel
2. Federal, state, or county declaration of emergency
3. Irregular emergencies & unforeseen events that increase the need for safe patient care
4. The nurse is actively engaged in a procedure and the presence of the nurse through the completion is required to ensure the health and safety of the patient.

Employer Responsibilities During Emergency Situations

This is important.

Even in an emergency, the hospital must try to meet the staffing needs through good faith efforts.

This can include voluntary overtime, per diems, and agency nurses. It can include assigning floaters or requesting an additional day of work from off-duty employees.

But,

Hospitals are prohibited from suspending, terminating, disciplining or discriminating against a nurse who refuses to work overtime.

Strategies Employers Can Use to Maintain Enough Nurses on a Shift and Remain Compliant

Check out this section for a comprehensive guide of steps managers can take to avoid mandatory overtime in a pinch.

Hospital management must do several things to stay compliant with this law.

First, they must ensure that nurses aren’t asked to come in earlier or stay later than their regular shift.

Managers can have a list of employees who are willing to come in and work extra hours. It can include those who are on part-time status, on-call or agency nurses. When the volume of patients increases, managers can look to the list to find substitute nurses for a shift.

Texas hospitals who use staffing software can quickly pull a list of nurses who are available or have volunteered to work overtime. SwipeClock’s TimeWorksPlus is ideal for this type of situation. It will provide recommendations of the best-suited nurses to fill in.

WorkforceHub makes it easier to accurately schedule nursing workforces.

Resources

Texas Law Part 1

Texas Law Part 2 

Q&A

Washington’s Law Restricting Mandatory Overtime For Nurses

In Washington, RCW 49.28.130-150 prevents health care facilities from requiring nurses to work in excess of their agreed upon regularly scheduled shifts. To do so is considered overtime.

Who is covered under the law?

The law covers both licensed practical nurses and registered nurses.

This would include diabetic educators, staff educators, clinical specialists and pain-management nurses. It includes research nurses, lab nurses, case managers, and telephone consulting nurses.

This list is non-exhaustive but provides examples of non-bedside nurses that are covered under the law.

Employers Obligated Under the Law

The law includes health care facilities that operate 24 hours per day, 7 days a week.

These facilities include private, public and state-run facilities.

It also includes hospices, hospitals, and rural health care facilities. It includes psychiatric hospitals, facilities run by the department of corrections, and some nursing homes.

• Hospitals
• Hospices
• Rural health care facilities
• Psychiatric hospitals
• Healthcare facilities run by the Department of Corrections
• Nursing homes regulated under chapter 18.51 of a home health agency

Mandatory Overtime Definition Under the Law

Overtime means hours beyond a regularly, predetermined, agreed upon shift.

Did you know that,

Shifts cannot exceed 12 hours in a 24-hour period. Overtime is also 80 hours in a 14 day period. Overtime is anytime that the employee works in excess of their regular shift.

For example,

If the employee works 13 hours and was scheduled for a 12-hour shift, then 1 hour of overtime has occurred.

And,

If the employee works 10 hours but was scheduled for 8 hours, then 2 hours of overtime has occurred.

Exceptions to Mandatory Overtime Restriction

There are several exceptions to mandatory overtime.

Do you know what they are?

If an unforeseeable emergency occurs, overtime can be required. In the law, it is called an “unforeseeable emergent circumstance.”

It includes situations of a national, state or city declared emergency. It includes when a facility disaster plan is activated and unforeseen disaster or catastrophic events.

• National, state or municipal declared emergency
• Any situation that causes the facility to activate their disaster plan
• Unforeseen disaster or catastrophic event that alters the need for health care services

Another exception is when pre-scheduled on-call time causes overtime.

Employers should document reasonable efforts to obtain staffing and still cannot avoid overtime.

Lastly, nurses who must work overtime to complete an ongoing procedure already in process.

• Emergencies
• Pre-scheduled on-call time turns into overtime
• Efforts to obtain staffing has not eliminated the need for overtime
• Nurses involved in a procedure already in progress

On-going Procedures that Can Require Mandatory Overtime of Involved Nurses

There are specific situations when a nurse who is involved in a critical and ongoing procedure must stay to complete the procedure, even if it involves mandatory overtime. Those instances are outlined below.

• There is an emergency code in process
  • Trauma
  • Cardiac arrest
  • Stroke
• The nurse needs to complete documentation after an emergency situation
• If the nurse has skills that no other nurse has
• The is the only one with specialized knowledge about a piece of equipment or procedure
• A nurse is performing outpatient surgical or specialty procedures
• In outpatient surgery or specialty clinic that operate with a single shift, the nurse may need to stay long enough for the patient to recover and be released

Reasonable Efforts Defined by Washington Law

Employers who make reasonable efforts and still cannot staff sufficiently can use mandatory overtime. However, this should be intermittent, not chronic staffing shortages.

Thus,

It is important to understand what reasonable efforts are required by Washington law.

Employers must seek for volunteers from qualified staff. They must contact staff who has made themselves available for extra work. They must seek for qualified per diem staff to fill in. They must also seek staff from a temporary staffing agency.

But,

Employers cannot use mandatory overtime to fill holes in the schedule resulting from vacant positions. They cannot use it to fill gaps caused by planned vacation, medical leave or other types of leaves.

Did you know?

Employers can use mandatory overtime for a same-day sick call or other unanticipated absence. It can also be used for unanticipated increases in patient count.

This is important!

Washington employers who violate the law can be penalized as much as $1000 for the first three violations. Then, a maximum penalty of $2,500 applies for the fourth infraction.

After that, a penalty of $5,000 per violation applies.

Clearly, penalties can be expensive. However, it is a delicate balancing act to ensure adequate staff for the patient care and avoid mandatory overtime.

Fortunately, employers can maximize scheduling effectiveness with Swipeclock’s employee scheduling tools. Fore example, managers can sort employees who are available for additional hours by qualification, existing schedule, and other criteria.

Resources

Washington Law

Workplace Rights

https://www.lni.wa.gov/WorkplaceRights/files/policies/esa11.pdf

West Virginia Nurse Overtime And Patient Safety Law

West Virginia law prohibits hospital employers from mandating a nurse to accept an assignment of overtime.

It also prohibits employers from taking action against a nurse who refuses to accept an assignment of overtime if the nurse declines to work because it may jeopardize patient or employee safety.

How does West Virginia law define overtime?

Any hours worked in excess of an agreed upon, predetermined, regularly scheduled shift.

Does the law apply to all nurses?

The law covers most nurses. It covers certified or licensed practical nurses and registered nurses who provide nursing services and are involved in direct patient care. However, it excludes nurse anesthetists.

And,

Nurse managers are included with respect to direct patient care but not regarding their 24-hour management of a unit, area or service.

Check out this requirement:

Any nurse who works 12 or more consecutive hours must be provided with at least eight consecutive off-duty time immediately following the end of the shift.

Plus,

Except for in specific instances, nurses cannot work more than 16 hours in a 24-hour period. When an on-call nurse has actually worked 16 hours in a hospital, then the hospital must make efforts to find a replacement nurse.

• Employers must provide 8 hours of rest after a shift of 12+ hours
• Maximum shift of 16 hours per 24 hours
• Hospitals must find replacement nurse when an on-call nurse has worked 16 hours

Exceptions to the Mandatory Overtime Restriction

Employers can schedule nurses can be scheduled for over 16 hours of duty in an unforeseen emergent situation.

• Act of terrorism
• Disease outbreak
• Adverse weather conditions
• Natural disasters

But,

It does not include any situation in which the hospital had a reasonable knowledge of an increase in patients or of decreased staffing.

On-call nurses can work more than 16 hours in a 24-hour period and to work overtime. However, as stated above, when an on-call nurse has worked 16 hours in a 24-hour period, then employer must try to find a replacement.

This is important:

Employers cannot use on-call nurses as a substitute for mandatory overtime.

When a nurse is involved in single-patient care procedure already in process, then the employer can require them to work mandatory overtime to complete the procedure. In this situation, a nurse can be required to work over 16 hours in a 24-hour period.

However, employers can’t purposefully schedule nurses for procedures with the intent that the procedure will force them to stay longer than their scheduled shift.

In addition, a collective bargaining agreement can allow for over 16 hours of work in a 24- hour period.

If a nurse volunteers to work overtime then the 16 maximum consecutive hours rule does not apply.

• Emergency situations that are unforeseeable
• On-call nurses
• An ongoing patient procedure is in progress
• Union agreement substitutes processes and instances when hospitals can require overtime
• Voluntary overtime is allowed

Hospitals must provide an anonymous way for nurses and patients to make staffing complaints related to patient safety. In addition, hospitals must post notices in a conspicuous place, regarding the law.

Employers who violate the law will be issued a reprimand. At the second violation, the employer can be fined up to $500. Any further violations require a minimum of a $2500 fine, which can go up to $5,000.

Resources

West Virginia Labor Law

https://labor.wv.gov/Wage-Hour/More/Nurses-Overtime-Safety/Documents/%C2%A721-5F%20NURSE%20OVERTIME%20AND%20PATIENT%20SAFETY%20ACT%202004.pdf

Employer Alternatives to Using Mandatory Overtime

Many healthcare employers struggle to maintain enough nursing staff. This is due to a variety of reasons. In some cases, rural facilities simply do not have enough qualified candidates.

Other employers struggle due to budget constraints. Still, others struggle with unexpected absences due to sickness or physical injury.

Strategies Against Shift Vacancies

Sick leave is one major reason that employers use mandatory overtime. When several nurses are on sick leave, it can be difficult to fill shifts with the remaining staff.

PTO buy-back programs encourage nurses to only use sick days when actually needed.

Don’t forget to do this:

Employers can actively try to keep all vacancies filled. This reduces the burden of staffing needs on nurses. It also ensures fewer gaps because the shift-load is spread among the right number of nurses.

• Consider PTO buy-back programs instead of use-it-or-lose-it policies
• Anticipate the physical needs of older nursing staff or those with limiting health issues when juggling nursing schedules
• Quickly fill nurse vacancies

Volunteer Overtime List

Did you know?

Employers can collect a list of nurses willing to work overtime or to take on extra shifts.

Create a volunteer and a nurse availability list.

Then,

Nurses can sign up for the times they are available to take extra shifts.

In addition, keep a list of per diem nurses, on-call nurses, and agency nurses.

Furthermore, if you are using on-call nurses, be sure to check your specific state as some of the mandatory overtime restrictions also have guidelines for on-call nurses.

Don’t forget!

Employers should also consult staffing records before scheduling nurses for overtime.

Employers should check for any nurses who are on a partial leave program such as FMLA that may be restricted from working overtime or above a certain number of hours. They should also check for nurses who are scheduled for less than 40 hours.

Plus,

Managers can check for nurse availability based on the day of the week or shift.

Employers can also check for available nurses against those who have had fewer hours of rest since the closing of their last shift. This helps prevent fatigued nurses to be the first called to fill a vacancy.

• Look for nurses who are scheduled for less than 40 hours
• Make sure nurses aren’t scheduled above any FMLA or other intermittent leave allows
• Check for nurse availability based on schedule or day of the week
• Check nurse skill level against the skill level needed for the shift
• Verify that nurses who have had adequate rest time since their last shift are the first ones called for overtime needs

Employers can track volunteer lists and skills with a spreadsheet.

However, healthcare providers using WorkforceHub can automatically maintain volunteer lists. In addition, the software tracks skill level, availability, education and other criteria.

It also checks for available employees who are not working an alternative schedule based on intermittent FMLA leave. It will also check for nurses that have not reached overtime thresholds.

And,

Swipeclock’s employee self-service portal allows employees to update availability daily. This makes it much easier for managers to quickly see who is available for a vacant shift.  

Other Options for Healthcare Employers that Don’t Include Overtime

Healthcare employers have other alternatives to both mandatory overtime and voluntary overtime. These options include the use of per diem nurses, part-time nurses, on-call nurses, and agency nurses.

But,

Some states restrict employers from using on-call nurses for scheduling shortages. In addition, some union contracts restrict employers from using agency nurses.

Indeed, it’s important to have more than just one or two options to fill nurse vacancies. Consider:

• Per diem nurses
• Call in part-time nurses
• On-call nurses
• Agency nurses

The Importance of Documentation When Using Nurse Overtime Cannot be Overstated

Did you know?

Many employers lose litigation because of lack of documentation. Unlike the criminal court system, employers are not considered innocent until proven guilty.

In a court challenge, the employer is assumed to be guilty unless sufficient documentation exists to prove compliance. This is the case in both private litigation or a case brought by the Department of Labor.

But, there’s a problem.

Many employers do not have a system in place that automatically tracks and retains the required information. Manual timecards and payroll processing are vulnerable to error. 

There is a solution.

Swipeclock’s WorkforceHub automatically tracks employee information, schedules, and actual hours worked. Managers can also make notes about schedule changes and efforts to avoid overtime.

It makes it easier for employers to defend themselves if they had to. 

That’s not all. . .

Software can electronically publish schedule changes. This immediately notifies employees. Then they can more easily plan for schedule changes. WorkforceHub notifies nurses of schedule changes immediately

Employee Information to Track

• Employee’s name
• Job title
• Work location(s)
• Date overtime was worked, including start time
• Number of mandated overtime hours
• Employee’s work schedule for the week overtime was required
• The reason that overtime was necessary
• A description of all reasonable efforts made to avoid overtime
  • The names of all employees contacted for voluntary overtime
  • A description of all efforts to secure per diem staff
  • A list of temporary agencies contacted
  • The signature of the individual who authorized mandatory overtime

Employers using WorkforceHub can automatically track this information and run a report with a couple clicks.

Solutions

• List of voluntary workers
• Per diem, agency nurses
• On-call nurses
• HR software to track skills and volunteer nurses
• Records documenting good faith efforts
• Records of who worked, when and how long
• Nurse staffing plans