PRINTER'S NO. 950
No. 834 Session of 2007
INTRODUCED BY SURRA, DiGIROLAMO, SOLOBAY, BELFANTI, BIANCUCCI,
BISHOP, BRENNAN, BUXTON, CALTAGIRONE, CAPPELLI, CARROLL,
CASORIO, CLYMER, COHEN, COSTA, DeLUCA, DePASQUALE, DERMODY,
DeWEESE, EACHUS, FABRIZIO, FREEMAN, GALLOWAY, GEORGE, GERBER,
GERGELY, GIBBONS, GOODMAN, GRUCELA, HALUSKA, HARHAI, HARKINS,
JAMES, JOSEPHS, KOTIK, LEACH, MANDERINO, MARKOSEK, MARSHALL,
McCALL, McILHATTAN, MELIO, MILLARD, MUNDY, MURT, O'NEILL,
PALLONE, PARKER, PETRONE, RAMALEY, RAYMOND, ROAE, SAINATO,
SAMUELSON, SANTONI, SEIP, SHAPIRO, SHIMKUS, SIPTROTH,
McILVAINE SMITH, STABACK, STURLA, TANGRETTI, R. TAYLOR,
WAGNER, WALKO, WANSACZ, J. WHITE, YOUNGBLOOD AND YUDICHAK,
MARCH 19, 2007
REFERRED TO COMMITTEE ON LABOR RELATIONS, MARCH 19, 2007
AN ACT
1 Relating to hours of employment of health-care employees;
2 providing for penalties and remedies; and imposing powers and
3 duties on the Department of Labor and Industry.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Prohibition
8 of Excessive Overtime in Health Care Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Clinical care services." The diagnostic, treatment, or
1 rehabilitative services provided in a health care facility,
2 including the following: radiology and diagnostic imaging, such
3 as magnetic resonance imaging and positron emission tomography;
4 radiation therapy; phlebotomy; electrocardiogram and
5 electroencephalography; and laboratory medical services.
6 "Department." The Department of Labor and Industry of the
7 Commonwealth.
8 "Employee." An individual employed by a health care facility
9 or by the Commonwealth or a political subdivision or
10 instrumentality of the Commonwealth who is involved in direct
11 patient care activities or clinical care services and who
12 receives an hourly wage or is classified as a nonsupervisory
13 employee for collective bargaining purposes. The term includes
14 an individual employed through a personnel agency that contracts
15 with a health care facility to provide personnel. The term does
16 not include a physician; physician assistant; dentist; or worker
17 involved in environmental services, clerical, maintenance, food
18 service or other job classification not involved in direct
19 patient care and clinical care services.
20 "Health care facility." A facility which provides clinically
21 related health services, regardless of whether the operation is
22 for profit or nonprofit and regardless of whether operation is
23 by the private sector or by State or local government.
24 (1) The term includes all of the following:
25 (i) A general or special hospital, a psychiatric
26 hospital, a rehabilitation hospital, a hospice, an
27 ambulatory surgical facility, a long-term care nursing
28 facility, a cancer treatment center using radiation
29 therapy on an ambulatory basis and an inpatient drug and
30 alcohol treatment facility.
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1 (ii) A facility which provides clinically related
2 health services and which is operated by the Department
3 of Corrections, the Department of Health, the Department
4 of Military and Veterans Affairs or the Department of
5 Public Welfare.
6 (iii) A mental retardation facility operated by the
7 Department of Public Welfare.
8 (2) The term does not include any of the following:
9 (i) An office used primarily for the private or
10 group practice by a health care practitioner.
11 (ii) A facility providing treatment solely on the
12 basis of prayer or spiritual means in accordance with the
13 tenets of a church or a religious denomination.
14 (iii) A facility conducted by a religious
15 organization for the purpose of providing health care
16 services exclusively to clergy or other individuals in a
17 religious profession who are members of the religious
18 denomination conducting the facility.
19 "On-call time." Time spent by an employee who is not
20 currently working on the premises of the place of employment but
21 who:
22 (1) is compensated for availability; or
23 (2) as a condition of employment, has agreed to be
24 available to return to the premises of the place of
25 employment on short notice if the need arises.
26 "Reasonable efforts." Attempts by a health care facility to:
27 (1) seek persons who volunteer to work extra time from
28 all available qualified staff who are working at the time of
29 the unforeseeable emergent circumstance;
30 (2) contact all qualified employees who have made
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1 themselves available to work extra time;
2 (3) seek the use of per diem staff; or
3 (4) seek personnel from a contracted temporary agency
4 when such staff is permitted by law or regulation.
5 "Unforeseeable emergent circumstance." Either of the
6 following:
7 (1) An unforeseeable declared national, State or
8 municipal emergency.
9 (2) A catastrophic event which is unpredictable or
10 unavoidable and which substantially affects or increases the
11 need for health care services.
12 The term does not include vacancies that arise as a result of
13 chronic short staffing.
14 Section 3. Prohibition of mandatory overtime.
15 (a) General rule.--Except as set forth in subsection (c),
16 all of the following apply:
17 (1) A health care facility may not require an employee
18 to work in excess of an agreed to, predetermined and
19 regularly scheduled daily work shift.
20 (2) This subsection shall not be construed to prevent an
21 employee from voluntarily accepting work in excess of these
22 limitations.
23 (3) This subsection shall not be construed:
24 (i) To prevent an employee from working an agreed
25 to, predetermined and regularly scheduled daily work
26 shift that is greater than eight hours.
27 (ii) To preclude the hiring of part-time or per diem
28 employees by a health care facility.
29 (b) Retaliation prohibited.--The refusal of an employee to
30 accept work in excess of the limitations set forth in subsection
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1 (a) shall not be grounds for discrimination, dismissal,
2 discharge or any other employment decision adverse to the
3 employee.
4 (c) Exception.--The provisions of subsection (a) shall not
5 apply to any of the following:
6 (1) On-call time. Nothing in this paragraph shall be
7 construed to permit a health care facility or employer to use
8 on-call time as a substitute for mandatory overtime or a
9 means of circumventing the intent of this act.
10 (2) If an unforeseeable emergent circumstance occurs
11 and:
12 (i) the assignment of additional hours is used as a
13 last resort;
14 (ii) the health care facility or employer has
15 exhausted reasonable efforts to obtain other staffing;
16 and
17 (iii) the health care facility or employer provides
18 the employee up to one hour to arrange for the care of
19 the employee's minor child or elderly or disabled family
20 member.
21 (3) When an employee is required to work overtime to
22 complete a patient care procedure already in progress if the
23 absence of the employee could have an adverse effect on the
24 patient.
25 (d) Off-duty time.--An employee who is required to work more
26 than 12 consecutive hours per workday pursuant to subsection (c)
27 or who volunteers to work more than 12 consecutive hours shall
28 be entitled to at least ten consecutive hours of off-duty time
29 immediately after the worked overtime. An employee may
30 voluntarily waive the requirements of this subsection.
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1 Section 4. Collective bargaining.
2 Nothing in this act shall prevent an employer or health care
3 facility from providing employees more protection from mandatory
4 overtime than the minimum established under this act.
5 Section 5. Regulations.
6 The department shall, within 18 months of the effective date
7 of this section, promulgate regulations to implement this act.
8 Section 6. Penalties.
9 (a) Administrative fine.--The department may levy an
10 administrative fine on a health care facility or employer that
11 violates this act or any regulation issued under this act. The
12 fine shall be not less than $100 nor greater than $1,000 for
13 each violation.
14 (b) Administrative order.--The department may order a health
15 care facility to take an action which the department deems
16 necessary to correct a violation of section 3.
17 (c) Administrative Agency Law.--This section is subject to 2
18 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
19 Commonwealth agencies) and Ch. 7 Subch. A (relating to judicial
20 review of Commonwealth agency action).
21 Section 20. Effective date.
22 This act shall take effect as follows:
23 (1) The following provisions shall take effect
24 immediately:
25 (i) Section 5.
26 (ii) This section.
27 (2) The remainder of this act shall take effect in 90
28 days.
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