Setting Limits on Mandatory Overtime
for Healthcare Workers
After decades of cost cutting strategies, merger mania, and privatization, health care employers have created terrible working conditions that are causing nurses and other healthcare workers to leave the field for less stressful and more rewarding jobs elsewhere. The remaining workers are working in an environment of high stress, chronic understaffing and frequent forced overtime. Even the American Hospital Association (AHA), an organization not inclined to criticize hospitals, acknowledges that inadequate staffing is affecting the ability of those serving in the field to care for patients.
In response to the shortages of personnel, health care employers have begun to rely more and more heavily on mandatory overtime in order to solve gaps in staffing. As patient advocates, nurses are increasingly concerned that mandatory overtime can compromise the quality of care being provided.
The increasing use of mandatory overtime to deal with the shortage is actually making the problem worse. Healthcare workers want to know that they will not be forced to work extended hours when they are tired, or when they have priorities outside the workplace. Solving the shortage of healthcare workers requires improving the overall working conditions in health care.
Airline crews have limits on their work hours to protect the public's safety, as do truck drivers, train engineers and air traffic controllers. It is time to bring similar protections to both patients and the workers who care for them in the health care industry. Regular, predictable hours are safer, and allow health care workers to rest, to plan childcare and to have time with their families.
AFSCME is working to address the forced overtime crisis via collective bargaining, and in legislation.
In hospitals where AFSCME nurses have formed unions, we're bargaining contracts that include limits on the use of mandatory overtime. Some examples of contract language on mandatory overtime include:
San Diego Hospital Association/Sharp Healthcare (Sharp Professional Nurses Network, UNAC/UHCP, NUHHCE, AFSCME)
Mandatory on-call will not be used as a substitute for adequate staffing and will not be instituted unless all other options have been explored.
Norwalk Hospital Association (Connecticut Health Care Associates, NUHHCE,
No nurse will be required to work mandatory overtime more than four times per year or more than 24 hours per year.
Taylor Hospital (United Nurses of Pennsylvania, NUHHCE, AFSCME)
No nurse will be required to work more than two mandatory overtime shifts in any calendar quarter except in the event of an extreme emergency.
McLaren Regional Medical Center (McLaren RN Local 875, AFSCME Council 25)
No RN will be mandated to work outside of his/her own unit.
From state capitals to the U.S. Congress, AFSCME has been actively lobbying lawmakers and developing other strategies to build awareness about this unsafe practice and make it a priority issue.
At the federal level, AFSCME and other unions representing healthcare workers have proposed the development of a federal requirement, under Medicare and Medicaid, that would prohibit certain health care employers from requiring nurses to work mandatory overtime. Senators Edward M. Kennedy (D-MA) and John Kerry (D-MA) introduced a bill based on our proposal.
At the state level, AFSCME leaders and activists are calling on their state legislators to address mandatory overtime. Fifteen states have introduced mandatory overtime bills in the 2001 legislative session - CA, CT, HI, IL, ME, MD, MN, NJ, NY, OH, OR, PA, RI, WA and WV. However, so far only Maine and Oregon have been successful in getting their bills through the legislative process and signed into law. (Details about these states' laws appear below. )
Issues to Consider:
Coverage: What type of health care workers and settings/facilities are covered? Would the prohibition apply to private and public sectors? Some bills cover only certain employees, some bills exempt certain types of employees, while some would prohibit compulsory overtime for all health care employees.
Maine: The law covers RNs and LPNs in all practice settings, but not other health care workers.
Oregon: The law limits coverage to RNs working in hospitals.
Definitions and Protections: What is mandatory? How is voluntary overtime addressed? How is on-call status addressed? Are workers who refuse overtime protected from retaliation? Some bills specify that the refusal of an employee to accept overtime shall not be grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the employee. A number of bills are silent on the issue of voluntary overtime, while some specify that an employee may voluntarily work additional hours.
Maine: The law defines overtime as hours worked in excess of 40 hours in a calendar week. It provides that a nurse may not be disciplined for refusing to work more than 12 consecutive hours, unless an unforeseen emergent circumstance occurs and the overtime is required as a last resort to ensure patient safety. The law is silent on voluntary overtime.
Oregon: A hospital may not require a RN to work more than two hours beyond the regularly scheduled shift and more than 16 hours in a 24-hour time period. The law is silent on voluntary overtime.
Exceptions: What kinds of exceptions apply? Are emergencies defined in a sufficiently narrow way to prevent employers from invoking emergencies routinely to evade compliance?
Maine: The overtime restriction does not apply in an emergency declared by the governor, or when "necessary to protect the public health or safety outside the normal course of business."
Oregon: The law provides exceptions for emergencies and for rural hospitals with limited numbers of replacement staff available. Emergencies are described as a national or state emergency, circumstances requiring the implementation of a facility disaster plan, or emergency circumstances identified by the Health Division by rule. The law also provides an exception if a hospital has made reasonable efforts to contact all qualified, on-call nursing staff and nursing services and is unable to obtain replacement staff in a timely manner.
Enforcement: How are prohibitions and work scheduling limitations enforced?
Maine: Any employer who violates the law commits a civil violation and may be fined not less than $100 nor more than $500 for each violation. The Attorney General may seek an injunction to enjoin any further violations or to compel the reinstatement of an employee discharged or discriminated against.
Oregon: The Health Division may impose civil penalties or suspend or revoke a hospital's license for violations. The Division will adopt a schedule establishing the amount of civil penalty, not to exceed $5,000, that may be imposed for any violation when there is reasonable belief that safe patient care has been or may be negatively impacted.
The Maine and Oregon legislation are available on the World Wide Web.
* Maine: http://janus.state.me.us/legis/bills/billtexts/ld108207-1.asp
* Oregon: www.leg.state.or.us/01reg/measures/hb2800.dir/hb2800.en.html