Senate Bill No. 78
(By Senators Hunter, Dempsey and Weeks)
[Originating in the Committee on the Judiciary;
reported February 28, 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
unforeseen 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
practical nurse, a registered nurse or a certified nurse assistant
employed in a hospital who is providing nursing services and is
involved in direct patient care activities or clinical services,
and who receives an hourly wage or is a contract worker, but does
not include licensed physicians, certified nurse anaesthetist or
advanced practice nurses.
(2) "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.
(3) "Overtime" means the hours worked in excess of an agreed
upon, predetermined, regularly scheduled shift within a 24-hour
(4) "Unforeseen emergent situation" means:
(A) An unpredictable or unavoidable occurrence at unscheduled
intervals relating to health care delivery that requires immediate
(B) Any 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
(C) 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
§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
§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 hospital to:
(A) Find persons to volunteer to work extra time from all
available qualified staff who are working at the time of the
unforeseen 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) Each hospital's policy should set forth clearly procedures
to ensure proper patient care during a shortage caused by a health
care worker's failing to give advance, appropriate or less than two
hours' notice for time off.
(5) No health care worker shall be required to work at a
hospital subject to this article more than sixteen hours in a 24-
hour period unless there is an unforeseen emergent situation as
defined in this article. The health care worker is responsible for
notifying in writing the hospital of hours worked in a 24-hour
period that would apply to his provision. Failure of the health
care worker to notify each hospital for which the health care
worker worked during such 24-hour period causes the health care
worker to forfeit the right to file a complaint for a violation of
this article or for the complaint to be considered a violation of
this article as provided for in section five.
(6) 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 hospital has exhausted reasonable
efforts to obtain staffing.
(7) The requirement that the hospital exhaust reasonable
efforts to obtain staffing does not apply in the event of an
unforeseen emergent situation as defined in this article.
§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 unless the hospital advises the
health care worker of the unforeseen emergent situation and that
the absence of the health care worker could have an adverse effect
on a patient; 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 when in
the case of an unforeseen 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 staffing; and
(B) The hospital has exhausted reasonable efforts to obtain
(2) Except in the event of an unforeseen emergent situation,
the hospital 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
(c) In the event that an hospital mandates a health care
worker to work overtime pursuant to subsection (b) of this section,
the hospital shall document in writing the reasonable efforts it
has made to obtain staffing. The documentation for the need for the mandated overtime 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 24-hour period except:
(1) In the case of unforeseen emergent situations; or
(2) When an health care worker is required to work overtime to
complete a patient care procedure already in progress where the
absence of the health care worker could have an adverse effect on
§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) Any complaint must be filed with the commissioner of labor
regarding an alleged violation of the provisions of this article
must be made within ninety days following the occurrence of the
incident giving rise to the alleged violation.
(c) The administrative penalty for the first violation of this
article shall include reprimand.
(d) For a second violation, administrative penalties shall
include reprimand and notice to establish a plan of correction.
(e) For a third violation, administrative penalties shall
include reprimand, notice to establish a plan of correction and
civil fines not to exceed five hundred dollars.
(f) For every offense thereafter,
administrative penalties shall include reprimand, notice to establish a plan of correction
and civil fines not to exceed one thousand dollars
(g) No civil fines may be imposed for any violation that may
occurs prior to the first day of July, two thousand four.
(h) All reports of violations made within a 24-hour period
will constitute a single violation.
(i) The commissioner shall also have the authority to seek
injunctive relief for any violation to require compliance with the
(j) 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.
(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 unforeseen
emergent situations. Enforcement is by the division of labor
through civil penalties.)
This article is new; therefore, strike-throughs and
underscoring have been omitted.