ByHouse Appropriations (originally sponsored by Representatives Riccelli, Appleton, Sells, Chapman, Fitzgibbon, Cody, Pellicciotti, Frame, Sullivan, Wylie, Jinkins, Orwall, Valdez, Ortiz-Self, Stonier, Thai, Lovick, Reeves, Doglio, Pollet, Bergquist, Santos, Macri, Goodman, Robinson, and Stanford)

AN ACT Relating to meal and rest breaks and mandatory overtime for certain health care employees; amending RCW 49.28.130 and 49.28.140; and adding new sections to chapter 49.12 RCW.

NEW SECTION. Sec. 1. A new section is added to chapter 49.12 RCW to read as follows:

(1) An employer shall provide employees with meal and rest periods as required by law, subject to the following:

(a) Rest periods may be taken at any point during each work period during which the employee is required to receive a rest period; and

(b) Meal and rest periods must be uninterrupted, and an employer may not require an employee to take intermittent meal or rest periods. This subsection (1)(b) does not apply when there is:

(ii) A clinical circumstance that may lead to patient harm without the specific skill or expertise of the employee taking a meal or rest period, or that raises the acuity of the unit to which the employee is assigned such that the employee is needed back from break to avoid patient harm.

(2) The employer shall record when an employee takes or misses a meal or rest period and maintain these records as required by the department.

(3) For purposes of this section, the following terms have the following meanings:

(iii) Receives an hourly wage or is covered by a collective bargaining agreement; and

(iv) Is a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a nursing assistant-certified as defined in RCW 18.88A.020.

Sec. 2. RCW 49.28.130 and 2011 c 251 s 1 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)(a) "Employee" means a ((licensed practical nurse or a registered nurse licensed under chapter 18.79 RCW)) person who:

(ii) Is involved in direct patient care activities or clinical services ((and));

(iii) Receives an hourly wage or is covered by a collective bargaining agreement; and

(iv) Is a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a certified nursing assistant as defined in RCW 18.88A.020.

(i) Is employed by a health care facility as defined in subsection (3)(a)(v) of this section; and

(ii) Is a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a certified nursing assistant as defined in RCW 18.88A.020.

(2) "Employer" means an individual, partnership, association, corporation, the state, 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 on a twenty-four hours per day, seven days per week basis:

(v) 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 that provide health care services ((to inmates as defined in RCW 72.09.015)).

(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;

(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) The employer may not use prescheduled on-call time to fill chronic or foreseeable staff shortages.

(b) Because of prescheduled on-call time necessary for immediate and unanticipated patient care emergencies;

(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.

(5) This section does not apply to sexual assault nurse examiners who work on a prescheduled on-call basis.

NEW SECTION. Sec. 4. A new section is added to chapter 49.12 RCW to read as follows:

Pursuant to RCW 49.12.105, an employer may apply to the director for a variance of the elements of chapter . . ., Laws of 2019 (this act).