Act of Oct. 9, 2008, P.L. 1376, No. 102              Cl. 35
                                  AN ACT

     Relating to hours of employment of health care employees;
        providing for penalties and remedies; and imposing powers and
        duties on the Department of Labor and Industry.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Short title.
        This act shall be known and may be cited as the Prohibition
     of Excessive Overtime in Health Care Act.
     Section 2.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Clinical care services."  The diagnostic, treatment or
     rehabilitative services provided in a health care facility,
     including the following: radiology and diagnostic imaging, such
     as magnetic resonance imaging and positron emission tomography;
     radiation therapy; phlebotomy; electrocardiogram and
     electroencephalography; and laboratory medical services.
        "Department."  The Department of Labor and Industry of the
        "Employee."  An individual employed by a health care facility
     or by the Commonwealth or a political subdivision or
     instrumentality of the Commonwealth who is involved in direct
     patient care activities or clinical care services and who
     receives an hourly wage or is classified as a nonsupervisory
     employee for collective bargaining purposes. The term includes
     an individual employed through a personnel agency that contracts
     with a health care facility to provide personnel. The term does
     not include a physician, physician assistant, dentist or worker
     involved in environmental services, clerical, maintenance, food
     service or other job classification not involved in direct
     patient care and clinical care services.
        "Health care facility."  A facility which provides clinically
     related health services, regardless of whether the operation is
     for profit or nonprofit and regardless of whether operation is
     by the private sector or by State or local government.
            (1)  The term includes all of the following:
                (i)  A general or special hospital, a psychiatric
            hospital, a rehabilitation hospital, a hospice, an
            ambulatory surgical facility, a long-term care nursing
            facility, a cancer treatment center using radiation
            therapy on an ambulatory basis and an inpatient drug and
            alcohol treatment facility.
                (ii)  A facility which provides clinically related
            health services and which is operated by the Department
            of Corrections, the Department of Health, the Department
            of Military and Veterans Affairs or the Department of
            Public Welfare.
                (iii)  A mental retardation facility operated by the
            Department of Public Welfare.
            (2)  The term does not include any of the following:
                (i)  An office used primarily for private or group
            practice by a health care practitioner.
                (ii)  A facility providing treatment solely on the
            basis of prayer or spiritual means in accordance with the
            tenets of a church or a religious denomination.
                (iii)  A facility conducted by a religious
            organization for the purpose of providing health care
            services exclusively to clergy or other individuals in a
            religious profession who are members of the religious
            denomination conducting the facility.
        "On-call time."  Time spent by an employee who is not
     currently working on the premises of the place of employment but
            (1)  is compensated for availability; or
            (2)  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.
        "Reasonable efforts."  Attempts by a health care facility to:
            (1)  seek persons who volunteer to work extra time from
        all available qualified staff who are working at the time of
        the unforeseeable emergent circumstance;
            (2)  contact all qualified employees who have made
        themselves available to work extra time;
            (3)  seek the use of per diem staff; or
            (4)  seek personnel from a contracted temporary agency
        when such staff is permitted by law or regulation.
        "Unforeseeable emergent circumstance."  Any of the following:
            (1)  An unforeseeable declared national, State or
        municipal emergency.
            (2)  A highly unusual or extraordinary event which is
        unpredictable or unavoidable and which substantially affects
        the provision of needed health care services or increases the
        need for health care services. This paragraph includes:
                (i)  an act of terrorism;
                (ii)  a natural disaster; and
                (iii)  a widespread disease outbreak.
            (3)  Unexpected absences, discovered at or before the
        commencement of a scheduled shift, which could not be
        prudently planned for by an employer and which would
        significantly affect patient safety.
     The term does not include vacancies that arise as a result of
     chronic short staffing.
     Section 3.  Prohibition of mandatory overtime.
        (a)  General rule.--Except as set forth in subsection (c),
     all of the following apply:
            (1)  A health care facility may not require an employee
        to work in excess of an agreed to, predetermined and
        regularly scheduled daily work shift.
            (2)  This subsection shall not be construed to prevent an
        employee from voluntarily accepting work in excess of these
            (3)  This subsection shall not be construed:
                (i)  To prevent an employee from working an agreed
            to, predetermined and regularly scheduled daily work
            shift that is greater than eight hours.
                (ii)  To preclude the hiring of part-time or per diem
            employees by a health care facility.
        (b)  Retaliation prohibited.--The refusal of an employee to
     accept work in excess of the limitations set forth in subsection
     (a) shall not be grounds for discrimination, dismissal,
     discharge or any other employment decision adverse to the
        (c)  Exception.--The provisions of subsection (a) shall not
     apply to any of the following:
            (1)  On-call time. Nothing in this paragraph shall be
        construed to permit a health care facility or employer to use
        on-call time as a substitute for mandatory overtime or a
        means of circumventing the intent of this act.
            (2)  If an unforeseeable emergent circumstance occurs
                (i)  the assignment of additional hours is used as a
            last resort;
                (ii)  the health care facility or employer has
            exhausted reasonable efforts to obtain other staffing;
                (iii)  the health care facility or employer provides
            the employee up to one hour to arrange for the care of
            the employee's minor child or elderly or disabled family
            (3)  When an employee is required to work overtime to
        complete a patient care procedure already in progress if the
        absence of the employee could have an adverse effect on the
        (d)  Off-duty time.--An employee who is required to work more
     than 12 consecutive hours per workday pursuant to subsection (c)
     or who volunteers to work more than 12 consecutive hours shall
     be entitled to at least ten consecutive hours of off-duty time
     immediately after the worked overtime. An employee may
     voluntarily waive the requirements of this subsection.
     Section 4.  Collective bargaining.
        Nothing in this act shall prevent an employer or health care
     facility from providing employees more protection from mandatory
     overtime than the minimum established under this act.
     Section 5.  Regulations.
        The department shall, within 18 months of the effective date
     of this section, promulgate regulations to implement this act.
     Section 6.  Penalties.
        (a)  Administrative fine.--The department may levy an
     administrative fine on a health care facility or employer that
     violates this act or any regulation issued under this act. The
     fine shall be not less than $100 nor greater than $1,000 for
     each violation.
        (b)  Administrative order.--The department may order a health
     care facility to take an action which the department deems
     necessary to correct a violation of section 3.
        (c)  Administrative Agency Law.--This section is subject to 2
     Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
     Commonwealth agencies) and Ch. 7 Subch. A (relating to judicial
     review of Commonwealth agency action).
     Section 20.  Effective date.
        This act shall take effect as follows:
            (1)  The following provisions shall take effect
                (i)  Section 5.
                (ii)  This section.
            (2)  The remainder of this act shall take effect July 1,