Requesting Feedback for Legislation Related to Mandatory Overtime

Hawaiʻi-ANA has partnered with other nursing organizations and agencies to draft a proposed bill regarding mandatory overtime for nurses. We are requesting your comments, questions, and language change recommendations prior to January 2022 when this bill will be presented in our opening Legislation session. Please comment on this post or email Executive Director, Linda Beechinor, at executivedirector@hawaii-ana.org. 

Interested in reading more about legislation and Hawaiʻi-ANA's involvement? Check our or Legislation tab on our website! 

Title for proposed bill: “Related to Limitations on Overtime for Nurses” 

HRS Chapter 387 is amended by adding section 387-16 as follows: 

Chapter 387-16.1. Limitations on nurse overtime.
 (a) Except as provided in (c) of this section, no nurse employed by a provider of healthcare services (hereinafter called a healthcare provider/employer) shall be required or coerced, directly or indirectly:
     (1) to work in excess of

1. a previously scheduled work shift or duty period agreed to by the nurse and the healthcare provider/employer, regardless of the length of the shift; or
2. 48 hours in any workweek as defined in HRS387-1(14);
3. or 16 consecutive hours in a 24-hour period; or
4.  during the 8-hour period immediately following the 16th hour.

    (2) to accept an assignment of overtime if the overtime would, in the nurse's judgment,

1. be inconsistent with professional standards of safe patient care; or
2. create an unacceptable risk to the physical safety of the nurse, a patient, or an employee of the healthcare provider/employer. 

 (b) Hours worked - for purposes of subparagraph(a)above, time spent by a nurse in the following shall be included as hours worked:

• Required meetings or while receiving professional education or training related to employment.
• On call or on standby when the nurse is required to be at the provider of services.
•  Regularly scheduled hours worked in fulfillment of primary duties of employment.

 (c) Clarification regarding voluntary overtime. Nothing in this subsection shall be construed to preclude a nurse from volunteering to work overtime. 

(d) Subsection (a) of this section does not apply    

• during a declared emergency or disaster (as defined in paragraph 387-16.7) if the provider is requested, or otherwise is expected, to provide an exceptional level of emergency or other medical services to the community but does not include a situation in which a healthcare provider/employer has reasonable knowledge of increased patient volume or inadequate staffing because of some other cause, if that cause is foreseeable; or 

• if the healthcare provider/employer has a scheduling problem caused by unforeseen weather conditions that prevent a second nurse from arriving at the facility to relieve the nurse on duty; in this subparagraph, "unforeseen weather conditions" means unusual, unpredictable, or unforeseen weather so extreme as to impair travel to the healthcare provider/employer, but does not include a situation in which the health care facility has knowledge of the weather conditions far enough in advance to act so that a scheduling problem under this subparagraph can reasonably be avoided; or 

• to a nurse fulfilling on-call time that is agreed on by the nurse and a healthcare provider/employer before it is scheduled unless fulfilling the on-call time would, in the nurse's judgment, create an unacceptable risk to the physical safety of the nurse, a patient, or another employee; 

• to a nurse voluntarily working overtime so long as the work is consistent with professional standards of safe patient care and does not exceed 16 consecutive hours; 

• to a nurse voluntarily working beyond 48 hours in a workweek so long as the nurse does not work more than 16 consecutive hours without an 8-hour break and the work is consistent with professional standards of safe patient care;  

• to the first two hours on overtime status when the healthcare provider/employer is obtaining another nurse to work in place of the nurse in overtime status, so long as the nurse in overtime status is not on duty for more than 16 consecutive hours. 

• to a nurse voluntarily working overtime on an aircraft in use for medical transport, so long as the shift worked is allowable under (a)(1), and (2) above. 

Chapter 387-16.2. Requirements to post notice. 
Each healthcare provider/employer shall post conspicuously in an appropriate location a sign (in a form specified by the director) specifying rights of nurses under this subsection.

Such sign shall include a statement that a nurse may file a complaint with the director or the director's authorized representative against a provider of services who violates the provisions of this subsection and information with respect to the manner of filing such a complaint, as well as the prohibition of retaliation by the employer per 387-16.4.

Chapter 387-16.3. Enforcement, offenses, and penalties.
 (a) The director shall administer HRS 387-16 and adopt regulations for implementing and enforcing HRS 387-16

 (b) A complaint alleging a violation of HRS 387-16 must be filed by the nurse with the director within 30 days after the date of the alleged violation. The director shall provide a copy of the complaint to the healthcare provider/employer named in the filing within three business days after receiving the complaint.

 (c) If the director finds that a healthcare provider/employer has knowingly violated an overtime provision of HRS 387-16 the following civil penalties shall apply:
     (1) for a first violation of HRS 387-16, the director shall reprimand the healthcare provider/employer;

     (2) for a second violation of HRS 387-16 within the fiscal year July 1 through June 30, the director shall reprimand the healthcare provider/employer and assess a penalty of $500;

     (3) for a third violation of HRS 387-16 within the fiscal year July 1 through June 30, the director shall reprimand the healthcare provider/employer and assess a penalty of not less than $2,500 but not more than $5,000;

     (4) for each violation of after a third violation of HRS 387-16 within the fiscal year July 1 through June 30, the director shall reprimand the healthcare provider/employer and assess a penalty of not less than $5,000 but not more than $25,000.

 (d) A healthcare provider/employer violates an overtime provision of HRS 387-16 "knowingly" when the facility is either aware that its conduct is of a nature prohibited by the overtime provision or aware that the circumstances described in the overtime prohibition exist; however, when knowledge of the existence of a particular fact is required to establish that the violation was knowing, that knowledge exists when the healthcare provider/employer is aware of a substantial probability of its existence, unless the healthcare provider/employer reasonably believes it does not exist.

 

 (e) Funds accrued from penalties assessed by the director in 16.3(c) above, would be directed to the Hawaiʻi State Center for Nursing for their use in nursing education and scholarship, in keeping with their mandate to address nursing workforce issues and their mission to support excellence in nursing practice and leadership development.


Chapter 387-16.4. Prohibition of retaliation.
A healthcare provider/employer may not discharge, discipline, threaten, discriminate against, penalize, or file a report with the Board of Nursing against a nurse for exercising rights under HRS 387-3.16 or for the good faith reporting of an alleged violation of HRS 387-3.16.

Chapter 387-16.5. Report requirements.
 A healthcare provider/employer shall file with the division of labor standards and safety, Department of Labor and Workforce Development, a semiannual report on a form provided by the department. The report for the six-month period ending June 30 must be filed before the following August 1, and the report for the six-month period ending December 31 must be filed before the following February 1. The report must include, for each nurse employed by the healthcare provider/employer or under contract with the healthcare provider/employer, the number of overtime hours worked.  A healthcare provider/employer that does not employ a nurse who worked overtime hours during the reporting period is not required to describe hours worked as overtime hours for individual nurses but may instead complete the report by stating on the form that there are no reportable hours.

Chapter 387-16.6. Provisions not applicable to nurses employed in federal facilities
The provisions of Chapter 387-16 do not apply to a nurse employed by a healthcare provider/employer that is operated by the federal government;

Chapter 387-16.7. Definitions.
In Chapter 387-16,
  (1) "director” means the director of labor and industrial relations;

  (2) “mandatory overtime” means hours worked in excess of the periods of time described in paragraph (1), except as provided in paragraph (2), pursuant to any request made by a provider of services to a nurse which, if refused or declined by the nurse involved, may result in an adverse employment consequence to the nurse, including discharge, discipline, loss of promotion, or retaliatory reporting of the nurse to the Board of Nursing.

   (3) "healthcare provider/employer" includes a private, municipal, or state hospital; independent diagnostic testing facility; hospital outpatient department or primary care outpatient facility; healthcare clinic; skilled nursing facility; kidney disease treatment center, including freestanding hemodialysis units; intermediate care facility; ambulatory surgical facility; rehabilitation agency; correctional facility owned or administered by the state; private, municipal, or state facility employing one or more public health nurses; long-term care facility; psychiatric hospital; residential psychiatric treatment center, secure residential psychiatric treatment center; juvenile detention facility or juvenile treatment facility; or any other provider of healthcare services that employs a nurse.

     (4) "nurse" means an individual licensed to practice registered nursing or licensed practical nursing under HRS Chapter 457 who provides nursing services through direct patient care or clinical services and included a nurse manager when delivering patient care services.  
 
     (5) "on-call" means a status in which a nurse must be ready to report to the health care facility and may be called to work by the health care facility; 
 
     (6) "overtime" means the hours worked in excess of a predetermined and regularly scheduled shift that is agreed to by a nurse and a healthcare facility; 

   (7) “declared emergency or disaster” means an emergency or disaster as declared by the Governor of Hawai’i but does not include an emergency that results from a labor dispute in the health care industry or consistent understaffing.  

  (8) “standards of safe patient care” means the recognized professional standards governing the profession of the nurse involved.

Chapter 387-16.8. Effective Date of Amendment.

This act shall take effect on July 1, 2023.