Ban on Mandatory Overtime
The fact that healthcare facilities continue to require nurses and other health professionals to work long, unexpected hours of overtime is one of the reasons behind the current shortage of nurses and other health workers. The practice also takes its toll on the quality of patient care.
A 2004 study revealed that nurses generally worked longer than scheduled and that approximately 40 percent of the work shifts they logged exceeded 12 hours. The risk of making an error significantly increased when work shifts were longer than 12 hours, when nurses worked overtime, or when they worked more than 40 hours per week.
Many local unions have negotiated contract language limiting the practice of mandatory overtime. At the federal level, we are working with legislators on a proposal that would require facilities receiving Medicare funding to stop mandating overtime. At the state level, many legislatures have passed bills or are considering legislation to ban mandatory overtime for health professionals.
States Banning Mandatory Overtime
Seventeen states have restrictions on the use of mandatory overtime for nurses: 15 states have enacted legislation and two have passed regulations containing provisions restricting mandatory overtime.
Alaska enacted legislation prohibiting mandatory overtime in 2010. It protects a nurse from having to work more than 14 consecutive hours involuntarily and that they be given at least 10 hours not on duty. However, a nurse can be required to work longer in a few cases. If the nurse is working for, or in conjunction with, an educational facility, they may be required to work for more than 14 hours on things like field trips. It also fails to apply if the nurse is involved in a surgery that goes past the 14-hour mark, or in the case of an emergency. They also do not apply to federal or tribal employees.
Connecticut enacted legislation in 2004 that prohibits a hospital from requiring a nurse to work in excess of a predetermined scheduled work shift, except in certain circumstances, such as participating in a surgical procedure until the procedure is completed, working during a public health emergency, or other similar circumstances.
Illinois enacted legislation in 2005 that prohibits hospitals from requiring nurses to work overtime except in unforeseen emergent circumstances. Even in such circumstances, no nurse may work more than four hours beyond the regularly scheduled work shift. A nurse may not be punished for refusing to work overtime, and if a nurse works 12 hours, there must be an eight-hour rest period before working again.
Maine legislation in 2001 states that a nurse may not be disciplined for refusing to work more than 12 consecutive hours. A nurse may be disciplined for refusing mandatory overtime in the case of an unforeseen emergent circumstance when overtime is required as a last resort to ensure patient safety. Any nurse mandated to work more than 12 consecutive hours, as permitted by this law, must be allowed at least 10 consecutive hours of off-duty time immediately following the worked overtime.
Maryland's law was passed in 2002 and provides that an employer may not require a nurse to work more than the regularly scheduled hours according to a predetermined work schedule. There are some exceptions, including an emergency situation that could not have been reasonably anticipated
Massachusetts: A law banning mandatory overtime, defined as working more than 12 hours in a given shift or more than 16 hours in a 24-hour period, was passed on July 31, 2012. The law bans mandatory overtime in a hospital except when there is an emergency situation, the safety of a patient requires its use and if there is no reasonable alternative. Additionally, a hospital must first make good-faith efforts to have overtime covered on a voluntary basis before making it mandatory. An employee who works more than 12 consecutive hours in a shift must be given at least 10 consecutive hours of off-duty time before working another shift. Further, nurses may not work more than 16 hours in a 24-hour period. Importantly, the law prohibits any discrimination, dismissal or other employment decision based on a nurse's refusal to accept work that exceeds these time limitations. A newly established health policy commission has been tasked with developing guidelines and procedures to determine what constitutes an emergency situation, and will consult with those employees and employers affected by such a policy. All hospitals must report all instances of mandatory overtime and the circumstances requiring its use to the department of public health, which will make them available to the public.
Minnesota legislation passed in 2007 extends protections to nurses who are employees of the state, although it does not apply to nurses employed by the state at a facility operated by the Department of Corrections. A “normal work period” is defined as 12 or fewer consecutive hours consistent with a predetermined work shift. “Emergency” refers to a period when replacement staff are not able to report for duty for the next shift, or a period of increased patient need, because of unusual, unpredictable or unforeseen circumstances such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions or a natural disaster that affects the continuity of patient care.
New Hampshire legislation was enacted in July 2007 and went into effect Jan. 1, 2008. It protects registered nurses, licensed practical nurses and licensed nursing assistants from being disciplined, or from losing any right, benefit or privilege, for refusing to work more than 12 consecutive hours, except under certain circumstances. Those circumstances include a nurse participating in surgery until the surgery is completed; a nurse working in a critical care unit until relieved by another employee beginning a scheduled work shift; a nurse working in a home healthcare setting until relieved by another qualified nurse or customary caregiver; a public health emergency; or a nurse covered by a collective bargaining agreement containing provisions addressing the issue of mandatory overtime.
New Jersey: AFT Healthcare’s New Jersey affiliate, Health Professionals and Allied Employees, and other unions and organizations worked for nearly three years to pass New Jersey’s bill. The path to its passage began in the fall of 1998, when Patients First, a coalition of healthcare unions and consumer groups, developed a legislative package that covered issues such as mandatory overtime and needlestick safety. The coalition introduced a mandatory overtime bill in 1999, but it did not begin to move through the New Jersey Legislature until a year later. The bipartisan bill passed both houses of the Legislature in 2000, but was conditionally vetoed by then-Gov. Christine Todd Whitman.
The new bill was reintroduced in 2001, and by the fall it had passed both houses of the Legislature. The bill became law one year from the date it was signed, a timing compromise that helped to remove the initial opposition the bill faced from the New Jersey Hospital Association. The New Jersey law is the toughest in the nation because it sets a maximum 40-hour workweek in hospitals and nursing homes for all health professionals who deliver patient care. Mandatory overtime would be used only in “unforeseen emergent circumstances” or an emergency situation, which is defined as “an unpredicted or unavoidable occurrence at unscheduled intervals relating to healthcare delivery.”
New York: After years of lobbying, nurses in New York are now protected from forced overtime. Nurse members of the New York State Public Employees Federation and the New York State United Teachers worked with several other unions for years to lobby their state legislators to ban mandatory overtime, often sharing their stories of being forced to work double shifts. On June 18, 2008, Gov. David Paterson and the state Assembly and Senate agreed on a measure to end mandatory overtime. When the measure took effect on July 1, 2009, hospitals had to stop the practice of requiring nurses to work more than their regular schedule, except in emergencies or healthcare disasters.
Oregon first prohibited mandatory overtime in operating rooms in 2001. Four years later, that prohibition was extended to all hospital nurses. The law prohibits hospitals from requiring nurses to work more than 48 hours in a week or more than 12 consecutive hours in a 24-hour period.
Pennsylvania legislation, signed into law in 2008, prohibits healthcare facilities from requiring an employee to work in excess of an agreed-to, predetermined and regularly scheduled daily work shift, except in the case of an unforeseeable declared national, state or municipal emergency; an act of terror; a natural disaster; or a widespread disease outbreak. It also can be used in the case of unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be planned for by an employer and which would significantly affect patient safety. The law prohibits employer retaliation but does not prohibit voluntary overtime.
Rhode Island: Enacted despite a governor veto, and effective March 4, 2008, Rhode Island’s legislation provides that state healthcare facilities may not require a registered nurse or nursing assistant to work in excess of the agreed-to, predetermined work shift, and the shift may not exceed 12 hours. Prohibition of mandatory overtime does not apply in instances of an unforeseen emergency, such as a declared disaster or catastrophic event. Mandatory overtime may not be used to fill vacancies from chronic short-staffing. The employer must have exhausted reasonable efforts to avoid using overtime and must give the employee at least one hour to make personal arrangements (child care, etc.). Employees are protected from disciplinary actions/retribution for refusing to work overtime, and monetary penalties can result from employers’ failure to adhere to the law.
Texas: Effective September 2009, mandatory overtime is prohibited in Texas. This was included as part of the Safe Hospital Staffing Act. The legislation itself is very similar to that enacted in Pennsylvania.
Washington’s legislation was passed in 2002 and prohibits covered healthcare facilities from requiring overtime, except in limited circumstances, for RNs and LPNs who provide patient care and are paid an hourly wage. “Overtime” means work in excess of agreed-upon, regularly scheduled shifts of not more than 12 hours in a 24-hour period or 80 hours in a 14-day period.
West Virginia, having already secured mandatory overtime protections in 2004, amended the statute in 2007. The amendment reduces the maximum hours a nurse may be required to work, includes certified registered nurse anesthetists in the definition of “nurse,” and adds a definition of “unforeseen emergent situation.” No nurse may work more than 16 hours in a 24-hour period, and any shift of 12 or more hours requires at least eight consecutive hours off before working again. The amended statute also prohibits a hospital from retaliating against a nurse who refuses to work overtime, and requires posting of the nurses’ rights.
State regulations pertaining to mandatory overtime exist in California and Missouri.