Mandatory Overtime
Background
Mandatory overtime is a difficult problem for RNs and health care facilities. Overtime is defined as the hours worked in excess of an agreed upon, predetermined, regularly scheduled full or part time work schedule, as determined by contract , established work scheduling practices, policies or procedures. Because of inadequate RN staffing, employers have used mandatory overtime to staff facilities. Concern for the long term effects of overtime include impact on the care-givers health as well as the potential for errors or near misses from fatigue and diminished quality of care provided. Research indicates that risks of making an error are significantly increased when work shifts are longer than 12 hours, when nurses worked overtime, or when they worked more than 40 hours per week.[1]
The American Nurses Association (ANA) has take the position that regardless of the number of hours worked, each registered nurse has an ethical responsibility to carefully consider his/her level of fatigue when deciding to accept any assignment extending beyond the regularly scheduled work day or week, including mandatory or voluntary overtime assignment. To help nurses make the case against working when fatigued, the ANA has added this issue to its’ Nationwide State Legislative Agenda supporting the enactment of mandatory overtime legislation in state legislatures and regulatory agencies. ANA is also pursuing the enactment of federal legislation to prohibit mandatory overtime. The Safe Nursing and Patient Care Act of 2007 (HR 2122) amends title XVIII of the Social Security Act to provide for patient protection by limiting the number of mandatory overtime hours a nurse may be required to work in certain providers of services to which payments are made under the Medicare Program.
ANA’s position on Mandatory Overtime may be found at its ANA Workplace Advocacy page.
States with Prohibitions
Fourteen states prohibit the use of mandatory overtime for nurses: Eleven states have enacted legislation: CT, IL, ME, MD, MN, NJ, NH, OR, RI, WA, and WV, while three states have provisions in regulations restricting mandating overtime hours: CA, MO, and TX.
Summary of State Approaches
(2007)
MN legislation extends protections to nurses deemed to be employees of the state, although it does not apply to nurses employed by the state at a facility operated by the Department of Corrections. The law describes “normal work period” as meaning 12 or fewer consecutive hours consistent with predetermined work shift with mandating of hours excluding an emergency. The definition of emergency refers to a period when replacement staff are not able to report for duty for the next shift or increase 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 natural disasters which impact the continuity of patient care.
NH legislation, effective January, 2008 prohibits an employer from disciplining or removing any right, benefit, or privilege of a registered nurse, licensed practical nurse or licensed nursing assistant for refusing to work more than 12 consecutive hours, except under specific circumstances. Those circumstances include: a nurse participating in surgery, until the surgery is completed; a nurse working in a critical care unit, until another employee beginning a scheduled work shift relieves him or her; a nurse working in a home health care setting, until another qualified nurse or customary caregiver relieves him or her; a public health emergency; or a nurse covered by a collective bargaining agreement containing provisions addressing the issue of mandatory overtime. A nurse may be disciplined for refusing mandatory overtime in a case when overtime is required as mentioned previously. Any nurse who is mandated to work more than 12 consecutive hours, as “permitted”, shall be allowed at least 8 consecutive hours of off-duty time immediately following the worked overtime. Employers shall be exempted from the provisions of the law if there is a written agreement between the employer and employee, made without coercion or pressure, and provided the agreement is submitted to the commissioner of the department of labor. The agreement may be terminated by the employee by written notice to the employer and the commissioner of the department of labor. Said termination shall be effective 14 days after notice is provided.
RI legislators enacted mandatory overtime prohibitions with an October 2007 override of the Governor's July 2007 veto.
WV, having already secured protections from mandatory overtime in 2004, passed legislation, amending Code of WV, the “ Nurse Overtime and Patient Safety Act” requiring posting of notice of nurse’s rights.
(2006)
Although not legislated, MO has regulations found in Chapter 20 – Hospitals, requiring polices developed regarding the use of overtime, stating, “Overtime shall not be mandated for any licensed nursing personnel except when an unexpected nurse staffing shortage arises that involves a substantial risk to patient safety, in which a reasonable effort must be applied to secure safe staffing before requiring the on-duty licensed nursing personnel to work overtime.” Reasonable efforts are defined.
(2005)
Legislation to prohibit mandatory overtime was enacted in IL and OR law was amended. The Illinois Nurses Association was instrumental in the enactment of legislation in IL that allows hospitals to mandate a nurse to work overtime only in unforeseen emergent circumstances. Even if they must do so, no nurse may work more than 4 hours beyond her/his 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 8 hour rest period before working again. The Oregon Nurses Association promoted the amendment of an OR mandatory overtime law (enacted in 2001) by prohibiting a hospital from requiring a nurse to work more than 48 hours in a week or more than 12 consecutive hours in a 24-hour period. There are a few specific exceptions to the limits on mandatory overtime. Nothing in the bill prevents voluntary overtime.
(2004)
WV enacted legislation prohibiting a hospital from mandating a nurse to accept an assignment of overtime. The commissioner of labor is charged with the enforcement of the law and shall administer a penalty for any violations. CT enacted legislation 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, public health emergency and similar circumstances.
(2002)
MD law states that an employer may not require a nurse to work more than the regularly scheduled hours according the predetermined work schedule. There are some exceptions including an emergency situation that could not be reasonably anticipated and if a nurse has critical skills and expertise that are required for the work. MN law prohibits action against a nurse who refuses mandatory overtime because it would jeopardize patient safety. NJ enacted legislation prevents a health care facility from requiring an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed 40 hours per week. TX regulations require hospitals to develop policy and procedures for mandatory overtime. WA's language states that acceptance of mandatory overtime by a nurse is strictly voluntary and refusal is not grounds for adverse actions against the nurse.
(2001)
Legislation enacted in 2001 in ME would prevent a nurse from being disciplined for refusing to work more than 12 consecutive hours except in certain circumstances and must be given 10 consecutive hours off following overtime. OR enacted legislation prevents a nurse from being required to work more than 2 hours beyond a regularly scheduled shift or 16 hours in a 24 hour time period. Regulations adopted in CA prior to 2001 prevent an employee scheduled to work a 12 hour shift from working more than 12 hours in a 24 hour period except in a health care emergency.
2008 Proposed Legislation
Eleven states have introduced legislation requiring employers restrict the use of mandatory overtime for nurses. Three states have addressed a prohibition in safe staffing bills;
AZ (SB28); FL (HB1533/SB1338); WV (HB2487).
Other states with bills addressing mandatory overtime include: ME (LR3275); NY (AB1898/SB6342, along with a number of others); OH (HB185/SB65); VT (HB701/SB166); WV (HB2230) and WI (AB926/SB512)
WA (HB1306) would extend existing protections to the public sector, while SB5848 would expand the types of health care facilities included. IL and NE have directed their efforts to state employees only.
NE (LR370) requests that the Business & Labor and Health & Human Services Committees of the Legislature conduct a study of the effects of mandatory overtime in their twenty four hour run health care facilities, to include employee morale, care to patients, associated costs including recruitment and use of temp pools; and report findings and recommendations.
Bill numbers have been provided to enable readers to investigate specific provisions.
Last updated 4/1/08
Disclaimer: Every effort has been made to include all legislation enacted, but omissions are possible.
[1] Rogers A, et al. The working hours of hospital staff nurses and patient safety. Health Affairs 2004;23(4):202-12.