Budget Amendment ID: FY2013-S4-495
EHS 495
Mandatory Overtime
Mr. Rush moved that the proposed new text be amended in section 2E, in item XXXX-XXXX, , by adding the following section:-
Section XXX. (a) As used in this section, the following words shall, unless the context requires otherwise, have the following meanings:—
“Health Care Workforce”, personnel that have an effect upon the delivery of quality care to patients, including, but not limited to, licensed practical nurses, unlicensed assistive personnel and/or other service, maintenance, clerical, professional and/or technical workers and other healthcare workers.
“Hospital”, a hospital licensed under section 51 of chapter 111, the teaching hospital of the University of Massachusetts medical school, a licensed private or state-owned and state-operated general acute care hospital, or an acute care unit within a state-operated facility; provided, however, that “hospital” shall not include a licensed non-acute care hospital classified as an inpatient rehabilitation facility, an inpatient substance abuse facility, or a long term care hospital by the federal Centers for Medicare and Medicaid Services.
“Nurse”, a registered nurse licensed under section 74 of chapter 112 or a licensed practical nurse licensed under section 74A of said chapter 112.
“Mandatory Overtime”, any hours worked by a member of the health care workforce in a hospital setting to deliver patient care, beyond the predetermined and regularly scheduled number of hours that the hospital and employee have agreed that the employee shall work, provided that in no case shall such predetermined and regularly scheduled number of hours exceed 12 hours in any 24 hour period.
(b) Notwithstanding any general or special law to the contrary, a hospital shall not require a member of the health care workforce to work mandatory overtime except in the case of a federal or state emergency or a facility wide emergency where the safety of the patient requires its use and when there is no reasonable alternative.
(c) Pursuant to paragraph (b), whenever there is a federal or state emergency or a facility wide emergency where the safety of a patient requires its use and when there is no reasonable alternative, the facility shall, before requiring mandatory overtime, make a good faith effort to have overtime covered on a voluntary basis. Mandatory overtime shall not be used as a practice for providing appropriate staffing for the level of patient care required.
(d) The department of public health in consultation with the Massachusetts Nurses Association and the Massachusetts Hospital Association, and other organizations, shall determine what constitutes a “facility wide emergency.” The department shall solicit feedback through public hearing. The department of public health on or before February 1, 2013 shall promulgate regulations or guidelines to implement the findings of this section.
(e) Beginning April 15, 2013, hospitals shall report all instances of mandatory overtime, and the circumstances requiring its use, to the department of public health. Such reports shall be public documents.
(f) The department of public health on or before January 1, 2014 shall promulgate regulations to establish a system to levy an administrative fine on any facility that violates this act or any regulation issued under this act. The fine shall be not less than $100 and not greater than $1,000 for each violation and fines collected shall be dedicated to the department of public health’s statewide sexual assault nurse examiner program. Said regulations shall also establish an independent appeals process for penalized entities.
(g) A nurse shall not be allowed to exceed sixteen consecutive hours worked in a twenty-four hour period. In the event a nurse works sixteen consecutive hours, said nurse must be given at least eight consecutive hours of off-duty time immediately after the worked overtime.
(h) The provisions of this section are intended as a remedial measure to protect the public health and the quality and safety of patient care, and shall not be construed to diminish or waive any rights of the nurse pursuant to any other law, regulation, or collective bargaining agreement. The refusal of a nurse to accept work in excess of the limitations set forth in this section shall not be grounds for discrimination, dismissal, discharge or any other employment decision.
(i) Nothing in this section shall be construed to limit, alter or modify the terms, conditions or provisions of a collective bargaining agreement entered into by a hospital and a labor organization.