ACT 102: What All Health Care Employers in Pennsylvania Need to Know
The Pennsylvania Prohibition of Excessive Overtime in Health Care Act, commonly known as Act 102, limits mandatory overtime for health care employees in Pennsylvania. The law prohibits health care facilities from requiring employees to work in excess of an agreed to, predetermined and regularly scheduled daily work shift.
Covered Facilities
Act 102 applies to private sector, nonprofit and state and local government health care facilities in Pennsylvania that provide clinically related health services.
Covered Employees
Act 102 applies to hourly and non-supervisory employees and contract-personnel of covered health care facilities who are involved in direct patient or "clinical care" services. Act 102 only covers employees who perform direct patient or clinical care and explicitly excludes physicians, physicians' assistants and dentists.
Limitations and Exceptions
Act 102 includes the following exceptions to its general prohibition of mandatory overtime:
Act 102 is enforced by the Pennsylvania Department of Labor and Industry ("the Department"), which also plans to release accompanying regulations. Act 102 authorizes the Department of Labor and Industry to assess administrative fines of $100 to $1,000 on a health care facility or employer for each violation.
When the Department receives a complaint regarding mandatory overtime, it conducts an on-site audit of overtime procedures at the facility. In the event of an audit, the Department will likely ask the following questions:
In order to comply with Act 102 and to be prepared for an audit, health care providers should take the following steps:
Covered Facilities
Act 102 applies to private sector, nonprofit and state and local government health care facilities in Pennsylvania that provide clinically related health services.
Covered Employees
Act 102 applies to hourly and non-supervisory employees and contract-personnel of covered health care facilities who are involved in direct patient or "clinical care" services. Act 102 only covers employees who perform direct patient or clinical care and explicitly excludes physicians, physicians' assistants and dentists.
Limitations and Exceptions
Act 102 includes the following exceptions to its general prohibition of mandatory overtime:
- On-Call Time: Act 102 does not apply to on-call time during which an employee is compensated for availability or has agreed to be available on short notice; however, on-call time may not be used "as a substitute for mandatory overtime or a means of circumventing the intent" of the Act.
- Unforeseeable Emergent Circumstances: Employers may require overtime in declared states of emergency and certain circumstances that substantially affect or increase the need for health care services. The assignment must be a last resort; reasonable efforts to obtain other staffing must be exhausted; and the employee must be given at least one hour to arrange for the care of dependent family members.
- Unexpected Absences: Subject to the same pre-assignment requirements as unforeseeable emergent circumstances, employers may require overtime in the event of unexpected absences that are discovered at or before the commencement of a scheduled shift, could not be prudently planned for by an employer and would significantly affect patient safety.
- Procedures in Progress: An employee may be required to work overtime in order to complete a procedure already in progress if the employee's absence could have an adverse effect on the patient.
Act 102 is enforced by the Pennsylvania Department of Labor and Industry ("the Department"), which also plans to release accompanying regulations. Act 102 authorizes the Department of Labor and Industry to assess administrative fines of $100 to $1,000 on a health care facility or employer for each violation.
When the Department receives a complaint regarding mandatory overtime, it conducts an on-site audit of overtime procedures at the facility. In the event of an audit, the Department will likely ask the following questions:
- What is your overtime mandation policy?
- Do you have chronic staffing shortages?
- Do you give employees at least 10 hours off after mandating?
- Have you ever communicated your mandation policy to employees?
- Do you take any of the following steps prior to mandating?
Best Practices
- Seek personnel from staff not working that day or coming in later?
- Call staff who are looking to make extra money?
- Utilize a PRN pool?
- Call temporary agencies? Do you keep a list of agencies so an off-shift supervisor can call?
- Use any type of "on call" program?
In order to comply with Act 102 and to be prepared for an audit, health care providers should take the following steps:
- Keep a current (and regularly updated) list of people who want overtime and are willing to be called in for shifts.
- Allow at least one hour for employees to make child care arrangements or other personal arrangements if they are to be mandated.
- Clearly communicate the facility's procedures for mandating; explain how and when it could/might be done and, depending on how often you may need to do this, put together a statement/memo/pamphlet that specifies your facility's protocol.
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