H. B. 4122
(By Delegates Palumbo, Caputo, Coleman, Morgan,
Pethtel, Overington and Smirl)
[Introduced
January 23, 2004
; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §21-5F-1, §21-5F-2,
§21-5F-3, §21-5F-4 and §21-5F-5
, all relating to providing
requirements and limitations for mandatory nurse overtime in
hospitals; providing legislative findings and purposes;
defining terms; providing for certain requirements and
limitations for hospital overtime; limiting number of hours
worked in a day; providing exceptions to overtime limitations;
providing that the division of labor enforce article;
providing that this article does not amend other acts; and
providing administrative procedures and penalties.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §21-5F-1, §21-5F-2,
§21-5F-3, §21-5F-4 and §21-5F-5
,
all to read as follows:
ARTICLE 5F.
NURSE OVERTIME AND PATIENT SAFETY ACT
.
§21-5F-1. Legislative findings and purpose.
The Legislature finds and declares that:
(1) It is essential that qualified registered nurses and other
licensed health care workers providing direct patient care be
available to meet the needs of patients;
(2) Quality patient care is jeopardized by nurses that work
unnecessarily long hours in hospitals;
(3) Health care workers, especially nurses, are leaving their
profession because of workplace stresses, long work hours and
depreciation of their essential role in the delivery of quality,
direct patient care;
(4) It is necessary to safeguard the efficiency, health and
general well-being of health care workers in hospitals, as well as
the health and general well-being of the persons who use their
services;
(5) It is further necessary that health care workers be aware
of their rights, duties and remedies with regard to hours worked
and patient safety; and
(6) Hospitals should provide adequate safe nursing staffing
without the use of mandatory overtime.
§21-5F-2. Definitions.
For the purposes of this article:
(1) "Hospital" means a facility licensed under the provisions of article five-b, chapter sixteen of this code, but does not include
hospitals operated by state or federal agencies.
(2) "Nurse" means a certified or licensed practical nurse or a
registered nurse who is providing nursing services and is involved
in direct patient care activities or clinical services but does not
include certified nurse anesthetists. Nurse managers are included
with respect to their delivery of in-hospital patient care, but
this is in no way intended to impact on their twenty-four hour
management responsibility for a unit, area or service.
(3) "Overtime" means the hours worked in excess of an agreed
upon, predetermined, regularly scheduled shift.
(4) "Taking action against" means discharging; disciplining;
threatening; reporting to the board of nursing; discriminating
against; or penalizing regarding compensation, terms, conditions,
location, or privileges of employment.
(5) "Unforseen emergent situation" means an unusual,
unpredictable or unforseen circumstance such as, but not limited
to, an act of terrorism, a disease outbreak, adverse weather
conditions or natural disasters. An unforeseen emergent situation
does not include situations in which the hospital has reasonable
knowledge of increased patient volume or decreased staffing,
including, but not limited to, scheduled vacations and scheduled
health care worker medical leave.
§21-5F-3.
Hospital nursing overtime limitations and requirements.
(a) Except as provided in subsections (b), (c), (d), (e) and
(f) of this section, a hospital is prohibited from mandating a
nurse, directly or though coercion, to accept an assignment of
overtime, and is prohibited from taking action against a nurse
solely on the grounds that the nurse refuses to accept an
assignment of overtime at the facility if the nurse declines to
work additional hours because doing so may, in the nurse's
judgment, jeopardize patient or employee safety.
(b) Notwithstanding subsections (a) and (g) of this section,
a nurse may be scheduled for duty or mandated to continue on duty
in overtime status in an unforseen emergent situation that
jeopardizes patient safety.
(c) Subsections (a) and (g) of this section do not apply when
a nurse may be required to fulfill pre-scheduled on-call time, but
nothing in this Act shall be construed to permit an employer to use
on-call time as a substitute for mandatory overtime.
(d) Notwithstanding subsections (a) and (g) of this section,
a nurse may be required to work overtime to complete a single
patient care procedure already in progress, but nothing in this Act
shall be construed to permit an employer to use a staffing pattern
as a means to require a nurse to complete a procedure as a
substitute for mandatory overtime.
(e) Subsection (a) of this section does not apply when a
collective bargaining agreement is in place between nurses and the hospital which is intended to substitute for the provisions of this
article by incorporating a procedure for the hospital to require
overtime.
(f) Subsection (a) of this section does not apply to voluntary
overtime.
(g) In the interest of patient safety, any nurse who works
twelve or more consecutive hours, as permitted by this section,
shall be allowed at least eight consecutive hours of off-duty time
immediately following the completion of the shift. Except as
provided in subsections (b), (c) and (d) of this section, no nurse
shall work more than sixteen hours in a twenty-four hour period.
The nurse is responsible for informing the employer hospital of
other employment experience during the twenty-four hour period in
question if this provision is to be invoked. To the extent that an
on-call nurse has actually worked sixteen hours in a hospital,
efforts shall be made by the hospital to find a replacement nurse
to work.
Each hospital shall designate an anonymous process for
patients and nurses to make staffing complaints related to patient
safety.
§21-5F-4. Enforcement; offenses and penalties.
(a) Pursuant to the powers set forth in article one of this
chapter, the commissioner of labor is charged with the enforcement
of this article. The commissioner shall propose rules in accordance with the provisions of article three, chapter twenty-
nine-a of this code to establish procedures for enforcement of this
article.
(b) Any complaint must be filed with the commissioner of labor
regarding an alleged violation of the provisions of this article
must be made within thirty days following the occurrence of the
incident giving rise to the alleged violation. Notification of the
alleged violation must be forwarded to the hospital in question
within three business days of filing.
(c) The administrative penalty for the first violation of this
article shall be a reprimand.
(d) The administrative penalty for the second offense of this
article shall be a reprimand and a fine not to exceed five hundred
dollars.
(e) The administrative penalty for the third and subsequent
offenses shall have a fine of not less than two thousand, five
hundred dollars and not more than five thousand dollars for each
violation.
(f) To be eligible to be charged of a second offense or third
offense under this section, the subsequent offense must occur
within twelve months of the prior offense.
(f) All proceeds for any civil fines paid pursuant to a
violation of this article shall be paid into the public health
trust fund administered by the office of the attorney general.
§21-5F-5.
Relation to other laws.
Any law of this State currently or subsequently enacted shall
not be deemed to be amended, rescinded or otherwise affected by any
provision of this article, but shall continue in full force and
effect.
(NOTE: The purpose of this bill is to generally prohibit
mandatory overtime for nursed in certain health care facilities.
This bill was recommended for introduction and passage by the
Joint Standing Committee on the Judiciary.
This article is new; therefore, strike-throughs and
underscoring have been omitted.)