COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 78

(By Senators Hunter, Dempsey and Weeks)

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[Originating in the Committee on Labor;

reported February 13, 2003.]

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A BILL to amend chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-f, relating to providing quality health care in hospitals; providing for certain requirements for hospital overtime policies; limiting number of hours worked in a day; providing exceptions for unforseen emergent circumstances; providing for reasonable efforts to be made to prevent mandatory overtime; protecting workers from discrimination for refusing mandatory overtime; providing division of labor enforce article; providing administrative procedures by rule; and creating civil penalties.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-f, to read as follows:
ARTICLE 5F. HOSPITAL OVERTIME PROCEDURES.
§21-5F-1. Definitions.
(a) For the purposes of this article:
(1) "Health care worker" means a certified or licensed individual employed in a hospital who is involved in direct patient care activities or clinical services, and who receives an hourly wage or is a contract worker.
(2) "Employer" means an individual, partnership, association, corporation or person or group of persons acting directly or indirectly in the interest of a hospital.
(3) "Hospital" means a facility licensed under the provisions of article five-b, chapter sixteen of this code, as well as hospitals operated by government agencies, other than the federal government.
§21-5F-2. Legislative findings and purpose.
(a) 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 professions 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 by requiring hospitals to establish overtime policies for certain classifications of health care workers; and
(5) It is further necessary that health care workers be aware of their rights, duties and remedies with regard to hospital overtime policies.
§21-5F-3. Overtime policy required.
(a) Hospitals shall develop overtime policies for all health care workers.
(1) The overtime policy shall be posted in a conspicuous place and provided to all health care workers and prospective employees. Copies of the overtime policy may be provided to patients and the public upon request.
(2) The overtime policy shall identify which health care workers are covered by the policy, and the overtime policy shall be stated in regard to each category of health care workers. The policy may be different for different categories of health care workers.
(3) The overtime policy shall detail what reasonable efforts the hospital will use to avoid mandatory overtime.
 (4) The "reasonable efforts" shall include at least good faith attempts by the employer to:
(A) Find persons to volunteer to work extra time from all available qualified staff who are working at the time of the unforseen emergent situation;
(B) Contact all qualified health care workers who have agreed to make themselves available to work extra time;
(C) Use per diem staff; and
(D) Seek personnel from a contracted temporary employment agency when such staff is permitted by law or rule.
(5) It is against public policy for a health care worker to be required to work in excess of an agreed to, predetermined and regularly scheduled daily work shift, except when the overtime is required as a last resort and the employer has exhausted reasonable efforts to obtain staffing.
(6) The requirement that the employer exhaust reasonable efforts to obtain staffing does not apply in the event of an unforseen emergent situation, including an unpredictable or unavoidable occurrence which substantially affects or increases the need for health care services, including, but not limited to, a declared national, state or local emergency, a natural disaster, severe weather or other catastrophic event. It does not include situations in which the employer has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and employee medical leave.
§21-5F-4. Regulation of overtime.
 (a) (1) The acceptance by any health care worker of work in excess of an agreed to, predetermined and regularly scheduled daily work shift is strictly voluntary on behalf of the health care worker.
(2) The refusal of any health care worker to accept the overtime work:
(A) Is not patient abandonment or grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the health care worker; and
(B) May not be used by any entity charged with issuing a professional license or certification as a basis for disciplinary action against the health care worker or the health care worker's license or certification.
(b) (1) The provisions of this section do not apply in the case of an unforseen emergent situation as described in this article when:
(A) The overtime is required only as a last resort and is not used to fill vacancies resulting from chronic short staffing; and
(B) The employer has exhausted reasonable efforts to obtain staffing.
(2) Except in the event of an unforseen emergent situation, the employer shall provide the health care worker with necessary time, up to a maximum of two hours, to arrange, if needed, for the care of the health care worker's minor children or make other personal arrangements.
(c) In the event that an employer requires a health care worker to work overtime pursuant to subsection (b) of this section, the employer shall document in writing the reasonable efforts it has made. The documentation shall be made available for review by the department of health and human resources and the division of labor.
(d) In no event shall a health care worker be required to work more than sixteen hours in any twenty-four hour period except in the case of unforseen emergent situations.
§21-5F-5. 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, by rule, establish procedures for enforcement of this article.
(b) The administrative penalty for the first violation of this article shall include reprimand or notice to establish a plan of correction, or both.
(c) For subsequent violations, administrative penalties shall include reprimand, notice to establish a plan of correction , and civil fines not to exceed five thousand dollars per violation.
(d) The commissioner shall also have the authority to seek injunctive relief for any violation to require compliance with the article.
NOTE: The purpose of this bill is to require hospitals to prepare and post overtime policies for the various categories of health care workers. Hospitals are required to make reasonable efforts to avoid imposing mandatory overtime, except in unforseen emergent situations. Enforcement is by the Division of Labor through civil penalties.

This article is new; therefore, strike-throughs and underscoring have been omitted.