Brief Summary of Amended Bill

Provides that certain hospital employees must be allowed to take uninterrupted meal and rest periods that are not intermittent, except under limited circumstances.
Amends the prohibition on mandatory overtime in health care facilities by including additional employees, prohibiting the employer from using prescheduled on-call time to fill foreseeable staff shortages, and making other changes.
Prohibits covered employees from voluntarily working more than sixty hours in a seven-day period for a health care facility.
Requires an additional break if a rest break is interrupted.

Background: Meal and Rest Periods. The Department of Labor and Industries (L&I) establishes by rule, requirements for meal and rest breaks for employees. Employees working over five hours must be allowed to take a 30-minute meal period. Meal periods may be unpaid if the employee is completely relieved from their duties during the meal period. Meal periods are on the employer's time if the employee must remain on the premises and act in the interest of the employer.

Employees must receive a rest period of at least ten minutes for each four-hour period worked. Rest periods are on the employer's time. The rest period must be allowed no later than the end of the third hour worked.

When the nature of the work allows, employees may take intermittent rest periods that add up to ten minutes. L&I's administrative policy describes intermittent rest periods as intervals of short duration in which employees are allowed to rest and can include personal activities such as making personal telephone calls, attending to personal business, and eating a snack. In certain circumstances, employers may require employees to remain on-call during their paid rest breaks. Employees may remain on-call during rest periods, but if they are called to duty, the break becomes an intermittent rest period.

Overtime. Health care facilities are prohibited from requiring certain employees to work overtime. Employees may voluntarily agree to work overtime, but cannot be required to do so or be retaliated against for refusing. The employees covered by this provision are licensed practical nurses and registered nurses, who are involved in direct patient care activities or clinical services and receive an hourly wage.

The mandatory overtime prohibition does not apply to work that occurs:

because of any unforeseeable emergent circumstance;
because of prescheduled on-call time;
when the employer has used reasonable efforts to obtain staffing; or
when an employee must work overtime to complete a patient care procedure already in progress where it would be detrimental to the patient if the employee left.

The health care facilities covered by this mandatory overtime prohibition are:

hospices;
hospitals;
rural health care facilities;
certain psychiatric hospitals; and
facilities owned or operated by prisons and jails that provide health care services to inmates in the custody of the Department of Corrections.

Variances. An employer may apply to L&I for a variance from any rule establishing hours or conditions of labor. The director of L&I must issue a variance if the director determines the employer has shown good cause for the lack of compliance.

Summary of Amended Bill: Meal and Rest Periods. A hospital must provide certain employees with meal and rest periods as required by law, except that:

rest periods may be taken at any point in the work period; and
meal and rest periods must be uninterrupted, and the employer may not require the employee to take intermittent meal or rest periods.

A meal or rest period may be interrupted where there is an unforeseeable emergent circumstance or a clinical circumstance that may lead to patient harm without the employee's specific skill or expertise and to allow for clinical circumstances that raise the acuity of the unit such that the employee is needed back from break to avoid patient harm.

An additional break is required if a rest break is interrupted. Rest breaks do not include the brief use of a restroom or the brief consumption of food or a beverage. The hospital must record when an employee takes or misses a meal or rest period and maintain the records as required by L&I.

Employees covered by these provisions are licensed practical nurses, registered nurses, surgical technologists, diagnostic radiologic technologists, cardiovascular invasive specialists, respiratory care practitioners, and certified nursing assistants who:

are involved in direct patient care activities or clinical services; and
receive an hourly wage or are covered by a collective bargaining agreement.

Overtime. The mandatory overtime restrictions are expanded to apply to the same groups of employees covered under the meal and rest period provisions. For facilities owned and operated by prisons and jails, the restrictions apply only to licensed practical nurses and registered nurses.

Employees may not voluntarily work more than sixty hours in a seven-day period for a health care facility. Employers may not use prescheduled on-call time to fill chronic or foreseeable staff shortages.

The exceptions to the overtime prohibition are amended. The exception for prescheduled on-call time applies only if it is necessary for immediate and unanticipated patient care emergencies. The exception for procedures in progress is amended to provide that employers may not schedule nonemergency procedures that would require mandatory overtime. For health care facilities owned and operated by prisons and jails, the requirement that the facility provide care to inmates in state custody is deleted.

Sexual assault nurse examiners and organ transplant teams who work on a prescheduled on-call basis are exempt from the overtime restrictions.

Variances. An employer may apply to L&I for a variance from the meal and rest break and overtime provisions.

EFFECT OF LABOR & COMMERCE COMMITTEE AMENDMENT(S):

Rest breaks do not include the brief use of a restroom or the brief consumption of food or a beverage.
An additional break is required if a rest break is interrupted.
An employer may not schedule a nonemergency procedure that would require mandatory overtime.
Covered employees are prohibited from voluntarily working more than sixty hours in a seven-day period for a health care facility.
Organ transplant teams are exempt from the overtime requirements.

Staff Summary of Public Testimony on Substitute House Bill: The committee recommended a different version of the bill than what was heard. PRO: Most front line nurses work 12-hour shifts and are stretched too thin. This will ensure that hospitals are staffed to adequate levels and that nurses get breaks. The bill addresses chronic and dangerous fatigue by these workers. It is a patient safety issue, as it is difficult to provide adequate care when the staff are tired, hungry, and overworked. Seventeen other states prohibit mandatory overtime. Collective bargaining gives the nurses the right to set the types of schedules, however the employer decides which schedule they will use. Medical errors skyrocket with fatigued heath care workers. Rested nurses prevent 80 percent of medical errors. Arbitrators have rules that it is not safe to miss breaks. We have filed dozens of lawsuits, all the way to the Supreme Court, winning every one of them. With scheduled breaks we have flexibility, better outcomes, higher satisfaction, and less turnover.

CON: Hospitals have the responsibility to provide adequate meal and rest breaks. At our hospital only 4.16 percent of breaks were missed. At Holy Family Hospital 97 percent of the nurses got their breaks. The problems are localized and are best addressed through the nurse staffing committees. Rigid schedules would cost our hospital $12 million dollars. As a professional, I should be able to decide when and how to take my breaks. We can not predict when a surgery will end and have to have staff available. Some surgeries can take a range of 2 to 12 hours to perform. Small community hospitals must use prescheduled on-call or the surgeries would have to be rescheduled days or weeks later if bumped by emergent cases. The bill makes it so physicians are unable to talk with nurses on break if the questions are not emergent. This is a very serious bill with unintended consequences. The bill may prevent our state from getting organ transplants if there are questions about our staff ability. The bill prohibits overtime even if it is voluntary. Missed breaks are in the range of 3.6 to 10 percent, it is not a systemic problem.