“Excessive Overtime” Rule a Problem for Many PA Health Employers

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By Jane Lewis Volk

Most health care workers are no strangers to long hours and overtime.  But Pennsylvania health care employers should be warned that there are limits on their ability to mandate overtime.

Under the Pennsylvania Prohibition of Excessive Overtime in Health Care Act, commonly referred to as Act 102, health care employers are limited in their ability to require employees to work time beyond their predetermined shifts.  The law took effect in July 2009, but many health care employers are still struggling to understand how the law affects their overtime practices.

Act 102 applies to hourly, non-supervisory employees who are involved in direct patient care at health care facilities including hospitals, hospices, outpatient surgical facilities, long-term care facilities, cancer treatment centers, or inpatient drug and alcohol treatment facilities.  Private physicians’ offices are not included.  Employees who are covered do not include physicians, physician assistants or employees not involved in direct patient care, such as maintenance staff.

Under the law, employers can only mandate overtime if unforeseeable circumstances arise, including:

  1. Emergency situations, such as an epidemic, natural disaster or terrorist attack
  2. Medical procedures in which the employee is already involved and the patient would be negatively affected if the employee were replaced
  3. An unexpected number of employee absences at the beginning of a shift which poses a risk to patient safety.  The law specifies that the exemption does not include problems that arise from chronic short-staffing.

If a health care facility is short-staffed for a particular shift, supervisors must employ all reasonable efforts to obtain other staffing before requiring employees to work overtime.  “Reasonable” efforts may include seeking volunteers, contacting other employees who have made themselves available to work extra time and using per diem or temporary staff.

The Act forbids retaliation against any employee who refuses overtime under the appropriate circumstances, meaning that health care employers should not discipline, terminate or take any actions that are adverse to a worker’s employment status because of a refusal of overtime.  Employers can, however, offer incentives for overtime to encourage employees to volunteer for overtime. Penalties for violations of Act 102 are  fines ranging from $100 to $1,000. It is also possible that a termination of employment under circumstances relating to overtime refusal could form a basis for a wrongful discharge lawsuit since the principles of Act 102 are now part of the public policy of Pennsylvania.

The Act specifically states that employers cannot use on-call policies as a way to skirt the law’s prohibition of mandatory overtime.  A recent labor dispute, however, suggests that reasonable on-call policies will not violate the Act.  In the case, the union of an employee of a Johnstown, Pennsylvania, nursing home filed a grievance in response to the disciplinary suspension of an employee who had refused to work unscheduled overtime.  The nursing home had a system in place whereby employees’ names would appear on the schedule with a star if they were the go-to person for overtime on a particular shift.  The employee had the star, indicating a willingness to work the shift in question, but had failed to check the schedule and refused the overtime assignment.  The employer had first exhausted other reasonable means to staff the shift by seeking volunteers, but had found none, and directed the employee to work the shift. Both parties referred to Act 102 in their arguments, although that law was not directly at issue in this arbitration.  The arbitrator did draw guidance from the Act and ruled in favor of the nursing home, finding that its overtime system was reasonable.

While the decision does not set a precedent, it does suggest that a clear and reasonable on-call policy is a practical way for health care employers to achieve compliance with Act 102.  A good on-call policy should specifically identify employees who are not on the premises but can be contacted to work additional hours if necessary.

The best way that health care employers can stay in compliance with Act 102 is to make sure that they are fully staffed so that chronic short-staffing is not an issue.  In cases where additional workers are needed, shift supervisors should be given a clear procedure of whom to contact and in what order.  When overtime does occur, employers should document whether or not it was voluntary and the circumstances surrounding the overtime assignment.

Jane Lewis Volk is an employment attorney at Pittsburgh-based law firm Meyer, Unkovic & Scott and can be reached at jlv@muslaw.com.