BILL REQ. #:  S-2166.1 

READ FIRST TIME 02/25/09.   

     AN ACT Relating to hours of labor for health care employees; amending RCW 49.28.130 and 49.28.140; and reenacting and amending RCW 49.12.187.

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

Sec. 1   RCW 49.12.187 and 2003 c 401 s 3 and 2003 c 146 s 1 are each reenacted and amended to read as follows:
      (1) This chapter shall not be construed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages or standards or conditions of employment. However, rules adopted under this chapter regarding appropriate rest and meal periods as applied to employees in the construction trades may be superseded by a collective bargaining agreement negotiated under the national labor relations act, 29 U.S.C. Sec. 151 et seq., if the terms of the collective bargaining agreement covering such employees specifically require rest and meal periods and prescribe requirements concerning those rest and meal periods.
     (2) Employees of public employers may enter into collective bargaining contracts, labor/management agreements, or other mutually agreed to employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods.
     (3) Employees of health care facilities as those terms are defined in RCW 49.28.130 may enter into collective bargaining contracts, labor/management agreements, or other mutually agreed to employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods.

Sec. 2   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 person who is (a) a licensed practical nurse or a registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a radiologic technologist certified under chapter 18.84 RCW, a diagnostic medical sonographer who produces ultrasonic recordings of internal organs for use by physicians, or a cardiovascular technologist or technician who conducts tests on pulmonary or cardiovascular systems of patients for diagnostic purposes; and (b) 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, state institution, political subdivision of the state, or person or group of persons, acting directly or indirectly in the interest of a health care facility.
     (3) "Health care facility" means the following facilities, or any part of the facility, that operates on a twenty-four hours per day, seven days per week basis: Hospices licensed under chapter 70.127 RCW, hospitals licensed under chapter 70.41 RCW, rural health care facilities as defined in RCW 70.175.020, and 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. 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. 3   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. Prescheduled on-call time must only be used for unanticipated and immediate patient care emergencies. Prescheduled on-call time may not be used to fill chronic or foreseeable staff shortages. The employer shall document reasonable efforts to obtain staffing to avoid 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. The employer may not schedule nonemergency procedures that would require overtime.