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
ARTICLE 5F. HOSPITAL OVERTIME PROCEDURES.
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
(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;
(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) "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
(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
§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
(c) (1) The provisions of this section do not apply in the
case of an unforeseeable emergent circumstance 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
(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
§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
(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.