On October 9, 2008, Governor Rendell signed into law the Prohibition of Excessive Overtime in Health Care Act, making Pennsylvania the latest state to prohibit or limit mandatory overtime for health care employees. Effective July 1, 2009, the law prohibits health care facilities from requiring employees to work in excess of an agreed to, predetermined and regularly scheduled daily work shift. Employers also will be prohibited from retaliating against employees who refuse to work in excess of the Act’s limitations.
Over the past seven years, enactment of this legislation had been a top priority for Pennsylvania nursing unions attempting to eliminate double shifts. The act includes some exceptions, including ensuring that hospitals have flexibility when faced with unforeseen absences.
The act applies to private sector, nonprofit and state and local government health care facilities that provide clinically related health services, including hospitals, hospices, ambulatory surgical facilities, long-term care nursing facilities, inpatient drug and alcohol treatment facilities and outpatient cancer treatment centers. The act also applies to certain facilities operated by the Departments of Corrections, Health, Military and Veterans Affairs and Public Welfare.
The act applies to hourly and nonsupervisory employees and contract-personnel of covered health care facilities who are involved in direct patient or "clinical care" services, including diagnostic, treatment or rehabilitative services. The act does not cover jobs that do not involve direct patient or clinical care services and explicitly excludes physicians, physicians' assistants and dentists.
Limitations and Exceptions
The act includes the following exceptions to its general prohibition of mandatory overtime:
- On-Call Time: The act does not apply to on-call time during which an employee is compensated for availability or has agreed to be available on short notice. 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.
The act will be enforced by the Pennsylvania Department of Labor and Industry, which will also issue accompanying regulations by April 2010. The act 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. The department also may take other corrective action when necessary.
The act will materially change the way covered entities schedule employees. Therefore, covered entities should begin preparing for the act well in advance of its July 1, 2009, effective date.