BILL REQ. #:  H-4543.2 

READ FIRST TIME 01/26/06.   

     AN ACT Relating to revising the mandatory overtime prohibition applicable to nurses, but only with respect to increasing the types of health care facilities that are subject to the prohibition from requiring nurses to perform overtime work and limiting the exceptions from the prohibition related to prescheduled on-call time and completion of patient care procedures; and amending RCW 49.28.130, 49.28.140, and 72.01.042.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 49.28.130 and 2002 c 112 s 2 are each amended to read as follows:
     The definitions in this section apply throughout this section and RCW 49.28.140 and 49.28.150 unless the context clearly requires otherwise.
     (1) "Employee" means a licensed practical nurse or a registered nurse licensed under chapter 18.79 RCW employed by a health care facility who is involved in direct patient care activities or clinical services and receives an hourly wage.
     (2) "Employer" means an individual, partnership, association, corporation, the state ((institution)), a political subdivision of the state, or person or group of persons, acting directly or indirectly in the interest of a health care facility.
     (3)(a) "Health care facility" means the following facilities, or any part of the facility, including such facilities if owned and operated by a political subdivision or instrumentality of the state, that operate((s)) on a twenty-four hours per day, seven days per week basis:
     (i) Hospices licensed under chapter 70.127 RCW((,));
     (ii) Hospitals licensed under chapter 70.41 RCW((,));
     (iii) Rural health care facilities as defined in RCW 70.175.020((, and));
     (iv) Psychiatric hospitals licensed under chapter 71.12 RCW((, and includes such facilities if owned and operated by a political subdivision or instrumentality of the state));
     (v) State hospitals as defined in RCW 72.23.010;
     (vi) State veterans' homes as defined in RCW 72.36.035;
     (vii) The residential habilitation centers listed in RCW 71A.20.020, 71A.20.030, and 71A.20.040;
     (viii) Facilities owned and operated by the department of corrections or by a governing unit as defined in RCW 70.48.020 in a correctional institution as defined in RCW 9.94.049(1) that provide health care services to inmates as defined in RCW 72.09.015 or to jail inmates; and
     (ix) Facilities in an institution as defined in RCW 13.40.020(12) or a detention facility as defined in RCW 13.40.020(9) that provide health care services to juveniles committed to the custody of the department of social and health services under RCW 13.40.185 or confined in a detention facility.
     (b) If a nursing home regulated under chapter 18.51 RCW ((or a home health agency regulated under chapter 70.127 RCW)) is operating under the license of a health care facility, the nursing home ((or home health agency)) is considered part of the health care facility for the purposes of this subsection.
     (4) "Overtime" means the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift within a twenty-four hour period not to exceed twelve hours in a twenty-four hour period or eighty hours in a consecutive fourteen-day period.
     (5) "On-call time" means time spent by an employee who is not working on the premises of the place of employment but who is compensated for availability or who, as a condition of employment, has agreed to be available to return to the premises of the place of employment on short notice if the need arises.
     (6) "Reasonable efforts" means that the employer, to the extent reasonably possible, does all of the following but is unable to obtain staffing coverage:
     (a) Seeks individuals to volunteer to work extra time from all available qualified staff who are working;
     (b) Contacts qualified employees who have made themselves available to work extra time;
     (c) Seeks the use of per diem staff; and
     (d) Seeks personnel from a contracted temporary agency when such staffing is permitted by law or an applicable collective bargaining agreement, and when the employer regularly uses a contracted temporary agency.
     (7) "Unforeseeable emergent circumstance" means (a) any unforeseen declared national, state, or municipal emergency; (b) when a health care facility disaster plan is activated; or (c) any unforeseen disaster or other catastrophic event which substantially affects or increases the need for health care services.

Sec. 2   RCW 49.28.140 and 2002 c 112 s 3 are each amended to read as follows:
     (1) No employee of a health care facility may be required to work overtime. Attempts to compel or force employees to work overtime are contrary to public policy, and any such requirement contained in a contract, agreement, or understanding is void.
     (2) The acceptance by any employee of overtime is strictly voluntary, and the refusal of an employee to accept such overtime work is not grounds for discrimination, dismissal, discharge, or any other penalty, threat of reports for discipline, or employment decision adverse to the employee.
     (3) This section does not apply to overtime work that occurs:
     (a) Because of any unforeseeable emergent circumstance;
     (b) Because of prescheduled on-call time;
     (c) When the employer documents that the employer has used reasonable efforts to obtain staffing. An employer has not used reasonable efforts if overtime work is used to fill vacancies resulting from chronic staff shortages; or
     (d) When an employee is required to work overtime to complete a patient care procedure already in progress where the absence of the employee could have an adverse effect on the patient, as long as the health care facility made reasonable efforts to schedule such patient care procedures so that overtime would not be required.

Sec. 3   RCW 72.01.042 and 1981 c 136 s 67 are each amended to read as follows:
     (1)(a) The hours of labor for each full time employee shall be a maximum of eight hours in any work day and forty hours in any work week.
     (b) Employees required to work in excess of the eight-hour maximum per day or the forty-hour maximum per week shall be compensated by not less than equal hours of compensatory time off or, in lieu thereof, a premium rate of pay per hour equal to not less than one-one hundred and seventy-sixth of the employee's gross monthly salary: PROVIDED, That in the event that an employee is granted compensatory time off, such time off should be given within the calendar year and in the event that such an arrangement is not possible the employee shall be given a premium rate of pay: PROVIDED FURTHER, That compensatory time and/or payment thereof shall be allowed only for overtime as is duly authorized and accounted for under rules and regulations established by the secretary.
     (2) Overtime requirements for an employee under this section who is also an employee of a health care facility under chapter 49.28 RCW are subject to RCW 49.28.130 through 49.28.150.