Senate Bill No. 78
(By Senators Hunter, Dempsey and Weeks)
[Originating in the Committee on Labor;
reported February 13, 2003.]
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
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
ARTICLE 5F. HOSPITAL OVERTIME PROCEDURES.
(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
§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;
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
§21-5F-3. Overtime policy required.
(a) Hospitals shall develop overtime policies for all health
(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
(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
(2) The refusal of any health care worker to accept the
(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
(A) The overtime is required only as a last resort
and is not used to fill vacancies resulting from chronic short
(B) The employer has exhausted reasonable efforts to
(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
(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
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
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.