Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Texas will soon join a growing list of more than a dozen states that have imposed mandatory overtime restrictions on hospitals, including California, Connecticut, Illinois, Maryland, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Washington, and West Virginia. Effective September 1, 2009, Texas hospitals can not, with limited exceptions, require registered or licensed vocational nurses to work mandatory overtime, nor can hospitals use on-call time as a substitute for mandatory overtime. Nurses are expressly authorized to refuse to work mandatory overtime and any such refusal does not constitute patient abandonment or neglect. Nothing in the law prohibits nurses from voluntarily working overtime.
Mandatory overtime means a requirement that a nurse work hours or days that are in addition to the hours or days scheduled, regardless of the length of a scheduled shift or the number of scheduled shifts each week. Pre and post-shift documentation and communication activities regarding a patient’s status, as well as prescheduled on-call time, are not included in making an overtime determination.
The new law contains four exceptions under which hospitals may require nurses to work mandatory overtime, including natural disasters in the hospital’s county or a contiguous county; governmental declarations of emergency in the hospital’s county or a contiguous county; emergencies or other infrequent, unforeseen events that hospital management could not have prudently anticipated that increase staffing needs; and ongoing medical or surgical procedures that necessitate the nurse’s continued attendance for patient care reasons. In the case of emergencies or unforeseen events, hospitals must first, to the extent possible, make a good faith effort to satisfy staffing needs through voluntary overtime, including calling per diems and agency nurses, assigning floats, or requesting an additional day of work from off-duty personnel.
Hospitals are prohibited from suspending, terminating or otherwise disciplining or discriminating against a nurse who refuses to work mandatory overtime. Interestingly, the bill originally introduced created a retaliation cause of action that allowed any nurse retaliated against for refusing to work mandatory overtime to recover actual and exemplary damages, court costs, and reasonable attorney’s fees. The initial bill also permitted terminated nurses to obtain reinstatement. The remedial provisions authorizing this new retaliation cause of action and related remedies were, however, deleted from the final bill.
The law directs the Executive Commissioner of the Texas Health and Human Services Commission to adopt implementing rules for the Department of State Health Services no later than January 1, 2010. We will update you when those rules become publicly available.
This blog entry was authored by Sherry L. Travers.