hb2821 intr

H. B. 2821

(By Delegates Hatfield, Martin, Caputo,

Brown, Webster and Fleischauer)

[Introduced January 31, 2003; referred to the

Committee on Health and Human Resources then the Judiciary.]

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; restricting nonvoluntary overtime in hospitals; providing enforcement provisions; providing that certain provisions in agreements contrary to the restrictions are void; and providing criminal and 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.

For the purposes of this article:

(1) "Employee" means an individual employed by a hospital who is involved in direct patient care activities or clinical services and who receives an hourly wage.

(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, but excludes hospitals operated by the state or any agency of the state, and hospitals staffed, in whole or in part, by public employees.

(4) "Reasonable efforts" means 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 unforeseeable emergent circumstance;

(B) Contact all qualified employees who have made themselves available to work extra time;

(D) Seek personnel from a contracted temporary employment agency when such staff is permitted by law or rule.

(5) "Unforeseen emergent situation" means 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 municipal emergency, a natural disaster, severe weather or other catastrophic event. It does not include situations in which the employer has reasonable knowledge of a decreased staffing plan, including, but not limited to, scheduled vacations, employee illness or increased patient volume.
§21-5F-2. Legislative findings and purpose.

The Legislature finds and declares that:

(1) It is necessary to safeguard the efficiency, health and general well-being of certain hospital employees, as well as the health and general well-being of the citizens of this state who use the services provided by these hospital employees by prohibiting the imposition of nonvoluntary overtime on certain hourly wage hospital employees.

(2) It is the public policy of this state to prohibit the imposition of nonvoluntary overtime on certain hospital employees.
§21-5F-3. Certain overtime requirements void.

A requirement that an employee of a hospital work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed forty hours per week, except in the case of an unforeseen emergent situation when the overtime is required only as a last resort and the employer has exhausted reasonable efforts to obtain staffing, is declared to be contrary to public policy and such a requirement contained in any contract, agreement or understanding executed after the effective date of this article is void.
§21-5F-4. Prohibition of nonvoluntary overtime.

(a) Notwithstanding any provision of law to the contrary, no hospital may require an employee to accept work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed forty hours per week.

(b) (1) The acceptance by any employee of work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed forty hours per week is strictly voluntary on behalf of the employee.

(2) The refusal of any employee 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 employee; 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 employee or the employee's license or certification.

(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) In the event of such an unforeseeable emergent circumstance, the employer shall provide the employee with necessary time, up to a maximum of three hours, to arrange, if needed, for the care of the employee's minor children or elderly or disabled family members.

(d) The requirement that the employer exhaust reasonable efforts to obtain staffing does not apply in the event of a declared national, state or municipal emergency or a disaster or other catastrophic event which substantially affects or increases the need for health care services.

(e) In the event that an employer requires an employee to work overtime pursuant to subsection (c) of this section, the employer shall document in writing the reasonable efforts it has exhausted. The documentation shall be made available for review by the department of health and human resources and the commissioner of labor.
§21-5F-5. Enforcement; offenses and penalties.

(a) Pursuant to the powers set forth in section six, article five-c of this chapter, the commissioner of labor is charged with the enforcement of this article.

(b) Any employer who violates the provisions of this action is subject to the sanctions provided for violations of article five-c of this chapter. If there are three or more violations of this article by a hospital within a calendar year, the fines shall treble for the fourth and subsequent violations. If any hospital has seven or more violations, the hospital shall be investigated and if the investigators find an ongoing pattern of deliberate violations of this article, the hospital's license may be suspended or revoked. If a hospital is found to deliberately violate the provisions of this article, a notice of the violation shall be published in the state register, to include the name of the hospital, date or dates of violation and the method of remedy provided to the employee. The notice shall be published in the state register within thirty days of resolution of the complaint, civil action, or both. The violation shall also be reported to state and federal health care licensure and accrediting organizations.

(c) In any retaliatory or employment suit brought for violations of this article, the evidence that any employee worked in excess of a predetermined work schedule or worked any involuntary overtime hours and establishes a rebuttable presumption that the employer violated this article. To rebut this presumption, the employer must prove that an emergency health care crisis occurred and overtime was required only as a last resort at the time the employee was forced or compelled to work.

(d) For making a report which leads to sanctions of the hospital, the employee who initially reports violations of this article, has the right to receive from the hospital a sum that equals twenty percent of any fine or penalty imposed.

(e) No employer may discharge or in any manner discriminate against any employee because the employee has:

(1) Made a complaint to the employer, or to the commissioner of labor, that the employer has not acted in accordance with the provisions of this article;

(2) Initiated or is about to initiate any civil action, or file any petition or criminal complaint against the employer for violating the provisions of this article; or

(3) Testified or is about to testify in any administrative proceeding, civil action or criminal action concerning an alleged violation of this article.

(f) Any employer violating subsection (d) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty thousand dollars per offense.

NOTE: The purpose of this bill is to provide an environment in hospitals where quality care can be provided to patients. The bill does this by allowing most employees involved in direct patient care activities or clinical services to refuse to work overtime, except in limited emergent situations.

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