Chapter 21, Article 5F of the West Virginia Code
Although the title makes it seem otherwise, the Nurses Overtime & Patient Safety Act (“the Act”) has nothing to do with overtime wages and everything to do with the safety and quality care of patients as well as the health and general well-being of hospital health care workers. The requirements of the Act restrict covered hospitals from requiring nurses involved in direct patient care to work more than sixteen hours within a twenty-four hour period and to provide at least eight full hours of timeoff after a nurse completes a shift of twelve or more hours. The provisions of the Act do not apply when a nurse volunteers to work the additional hours, when such decision is not a result of coercion from the hospital, or during an unforeseen emergency situation. Hospitals are also prohibited from taking action against any nurse that refuses to work more hours than are permitted. Those hospitals in which the nurses are covered by a collective bargaining agreement addressing these same issues as well as those hospitals operated by a state or federal agency are not covered. The Act also specifically exempts nurse anesthetists, even when such work is performed in a covered hospital. Nurses providing direct patient care in a patient’s residence, in an assisted living residence or a nursing home are also not covered.
Frequently Asked Questions: Nurses Overtime & Safety
Does the Nurses Overtime & Patient Safety Act relate to the payment of overtime wages?
No, although the Act is titled in a manner that makes it seem otherwise, the Nurses Overtime & Patient Safety Act has nothing to do with overtime wages. Its purpose is to protect the safety and welfare of patients by ensuring that nurses involved in direct patient care aren’t being forced to work more than sixteen hours within any twenty-four hour period, and are provided a full eight-hours of time off after working a shift of twelve or more hours.
Do these requirements apply to all nurses, regardless of where they work?
The Nurses Overtime & Patient Safety Act applies only to those nurses working in a covered hospital. A covered hospital does not include any hospital where the nurses are covered by a collective bargaining agreement that addresses the same requirements that are covered by the Act, or any hospital that is operated by a state or federal agency. The Act also specifically excludes coverage for a certified nurse anesthetist.
What about nurses that provide direct patient care in the patient’s home or in a nursing home facility?
Only those nurses that work in an actual hospital covered by the provisions of the Act are protected. However, any nurse that works in an assisted living or nursing home that feels he or she is being forced to work a schedule that jeopardizes patient safety should contact the Health Facility Licensure and Certification Section of the Division of Health & Human Services for possible assistance. Contact Information for this agency is as follows: https://ohflac.wvdhhr.org/ - 304-558-0050
What if the hospital has a collective bargaining agreement in place for nurses, but the agreement doesn’t relate to forced overtime?
The exemption for hospitals that have a collective bargaining agreement in place for its nurses is based on the premise that such agreement addresses the same protections as provided by the Nurses Overtime & Patient Safety Act. Should that not be the case, the hospital would be required to comply with the full requirements and conditions of the Act.
Do these provisions restrict nurses from staying with a patient to continue care through the end of a surgery or procedure?
No it does not. The Nurses Overtime & Protection Safety Act does not restrict or prohibit any nurse from voluntarily staying with a patient throughout an entire procedure, when doing otherwise would jeopardize the safety of the patient.
How do these provisions apply to nurse managers that are responsible for both management duties and direct patient care?
Nurse Managers are provided the same protections as other nurses, but only for those hours he or she spends working in relation to direct patient care. Hours spent relating to other duties are not counted.
What about the amount of time a nurse spends on-call?
On-call hours that occur away from the hospital are not considered hours worked until the nurse is actually called to duty. Therefore, the hours a nurse spends waiting to be called to duty are not considered when determining his or her hours worked. However, if a nurse is required to stay on hospital premises while on-call and that time meets the requirements of state law to be considered hours worked, such hours are to be included when determining whether a nurse has worked sixteen or more hours.
Is it permissible for a hospital to schedule a nurse to work two eight-hour shifts without providing at least eight-hours of time off between each shift?
Yes it is. The requirement to provide a full eight-hours of time off between shifts only applies after a nurse has worked twelve or more hours.
Is the hospital responsible for ensuring its nurses aren’t being scheduled to work more hours than is permissible?
Although it is the hospital’s responsibility to consider the requirements of the Act when scheduling nurses, it is the individual responsibility of each nurse to inform the hospital anytime such schedule requires him or her to work in excess of sixteen hours within any twenty-four hour period, or when such schedule does not provide a full eight-hours of time off after working twelve or more hours. When so notified, the hospital is responsible for changing the schedule to comply with the requirements of state law.
If a nurse ends up working more than sixteen hours, does the Nurses Overtime & Patient Safety Act require payment of time and a half wages for those hours?
No, The Nurses Overtime & Patient Safety Act has nothing to do with the requirement to pay overtime wages. Any nurse that isn’t receiving proper compensation for overtime hours needs to bring that matter to the attention of the United States Department of Labor, Wage & Hour Division. Contact information for that agency is as follows: www.dol.gov - 1-866-487-2365.
How is the twenty-four hour period determined?
The twenty-four hour period is defined as meaning the twenty-four hours that immediately follow a break of at least eight-hours. That means each twenty-four hour period begins at the time a nurse returns to duty after being provided a full eight-hour break period.
Do the requirements of the Nurses Overtime & Patient Safety Act apply during an emergency?
No, the provisions of the Act are suspended during any unforeseen emergency situation, which is defined as any unusual, unpredictable or unforeseen condition in which a hospital has no advance knowledge. Some examples of such emergencies include acts of terrorism, disease outbreaks, adverse weather conditions, natural disasters, etc.
Are hospitals permitted to file a complaint with the Board of Nursing against a nurse that refuses to work more than sixteen hours outside of an emergency situation?
No, hospitals are specifically restricted from taking action against any nurse that refuses to work in violation of the Act. To take action against a nurse includes termination, any type of disciplinary action, making threats, reporting the nurse to the board of nursing, discriminating against, being penalized relating to compensation, terms, conditions, location or privileges of employment. Anytime a hospital takes such action against a nurse relating to the provisions of the Act, the nurse may file a complaint with the Division of Labor.
If a hospital forces a nurse to work in violation of the Act, is there a process for filing a complaint?
Yes, the Division of Labor accepts complaints relating to the Nurses Overtime & Patient Safety Act as long as the complaint is filed within thirty days of the actual occurrence. Complaints may be filed in the form of a letter, an email, or the submission of a Request for Assistance (RFA) form. Nurses that would prefer to file their complaint by email should use the address of email@example.com. For those that would like to file their complaint by RFA, the Division’s website provides both a printable and an electronic version of the form @ www.labor.wv.gov.
Does the Division of Labor offer anonymity to nurses that file complaints?
All complaints filed with the Division of Labor relating to the Nurses Overtime & Patient Safety Act will remain anonymous until the Division has the opportunity to determine if the complaint has merit and needs to be addressed with the hospital. However, once a complaint is determined as credible, the ensuing investigation will require the Division to inform the hospital concerning the specifics of the complaint.
The Nurses Overtime & Patient Safety Statue & Legislative Rule
WEST VIRGINIA CODE
CHAPTER 21. LABOR.
ARTICLE 5F. NURSE OVERTIME AND PATIENT SAFETY ACT.
Legislative findings and purpose.
The Legislature finds and declares that:
(1) It is essential that qualified registered nurses and other licensed health care workers providing direct patient care be available to meet the needs of patients;
(2) Quality patient care is jeopardized by nurses that work unnecessarily long hours in hospitals;
(3) Health care workers, especially nurses, are leaving their profession because of workplace stresses, long work hours and depreciation of their essential role in the delivery of quality, direct patient care;
(4) It is necessary to safeguard the efficiency, health and general well-being of health care workers in hospitals, as well as the health and general well-being of the persons who use their services;
(5) It is further necessary that health care workers be aware of their rights, duties and remedies with regard to hours worked and patient safety; and
(6) Hospitals should provide adequate safe nursing staffing without the use of mandatory overtime.
For the purposes of this article:
(1) "Hospital" means a facility licensed under the provisions of article five-b, chapter sixteen of this code, but does not include hospitals operated by state or federal agencies.
(2) "Nurse" means a certified or licensed practical nurse or a registered nurse who is providing nursing services and is involved in direct patient care activities or clinical services, but does not include certified nurse anesthetists. Nurse managers are included with respect to their delivery of in-hospital patient care, but this is in no way intended to impact on their 24-hour management responsibility for a unit, area or service.
(3) "Overtime" means the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift.
(4) "Taking action against" means discharging; disciplining; threatening; reporting to the board of nursing; discriminating against; or penalizing regarding compensation, terms, conditions, location or privileges of employment.
(5) "Unforeseen emergent situation" means an unusual, unpredictable or unforeseen circumstance such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions or natural disasters. An unforeseen emergent situation does not include situations in which the hospital has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and scheduled health care worker medical leave.
§21-5F-3. Hospital nursing overtime limitations and requirements.
(a) Except as provided in subsections (b), (c), (d), (e) and (f) of this section, a hospital is prohibited from mandating a nurse, directly or through coercion, to accept an assignment of overtime and is prohibited from taking action against a nurse solely on the grounds that the nurse refuses to accept an assignment of overtime at the facility if the nurse declines to work additional hours because doing so may, in the nurse's judgment, jeopardize patient or employee safety.
(b) Notwithstanding subsections (a) and (g) of this section, a nurse may be scheduled for duty or mandated to continue on duty in overtime status in an unforeseen emergent situation that jeopardizes patient safety.
(c) Subsections (a) and (g) of this section do not apply when a nurse may be required to fulfill prescheduled on-call time, but nothing in this article shall be construed to permit an employer to use on-call time as a substitute for mandatory overtime.
(d) Notwithstanding subsections (a) and (g) of this section, a nurse may be required to work overtime to complete a single patient care procedure already in progress, but nothing in this article shall be construed to permit an employer to use a staffing pattern as a means to require a nurse to complete a procedure as a substitute for mandatory overtime.
(e) Subsection (a) of this section does not apply when a collective bargaining agreement is in place between nurses and the hospital which is intended to substitute for the provisions of this article by incorporating a procedure for the hospital to require overtime.
(f) Subsection (a) of this section does not apply to voluntary overtime.
(g) In the interest of patient safety, any nurse who works twelve or more consecutive hours, as permitted by this section, shall be allowed at least eight consecutive hours of off-duty time immediately following the completion of the shift. Except as provided in subsections (b), (c) and (d) of this section, no nurse shall work more than sixteen hours in a twenty-four hour period. The nurse is responsible for informing the employer hospital of other employment experience during the twenty-four hour period in question if this provision is to be invoked. To the extent that an on-call nurse has actually worked sixteen hours in a hospital, efforts shall be made by the hospital to find a replacement nurse to work. Each hospital shall designate an anonymous process for patients and nurses to make staffing complaints related to patient safety.
(h) Each hospital shall post, in one or more conspicuous place or places where notices to employee nurses are customarily posted, a notice in a form approved by the commissioner setting forth a nurse's rights under this article.
§21-5F-4. Enforcement; offenses and penalties.
(a) Pursuant to the powers set forth in article one of this chapter, the Commissioner of Labor is charged with the enforcement of this article. The commissioner shall propose legislative and procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish procedures for enforcement of this article. These rules shall include, but are not limited to, provisions to protect due process requirements, a hearings procedure, an appeals procedure, and a notification procedure, including any signs that must be posted by the facility.
(b) Any complaint must be filed with the commissioner regarding an alleged violation of the provisions of this article must be made within thirty days following the occurrence of the incident giving rise to the alleged violation. The commissioner shall keep each complaint anonymous until the commissioner finds that the complaint has merit. The commissioner shall establish a process for notifying a hospital of a complaint.
(c) The administrative penalty for the first violation of this article is a reprimand.
(d) The administrative penalty for the second offense of this article is a reprimand and a fine not to exceed five hundred dollars.
(e) The administrative penalty for the third and subsequent offenses is a fine of not less than two thousand five hundred dollars and not more than five thousand dollars for each violation.
(f) To be eligible to be charged of a second offense or third offense under this section, the subsequent offense must occur within twelve months of the prior offense.
(g) (1) All moneys paid as administrative penalties pursuant to this section shall be deposited into the Health Care Cost Review Fund provided by section eight, article twenty-nine-b, chapter sixteen of this code.
(2) In addition to other purposes for which funds may be expended from the Health Care Cost Review Fund, the West Virginia Health Care Authority shall expend moneys from the fund, in amounts up to but not exceeding amounts received pursuant to subdivision (1) of this subsection,
for the following activities in this state:
(A) Establishment of scholarships in medical schools;
(B) Establishment of scholarships for nurses training;
(C) Establishment of scholarships in the public health field;
(D) Grants to finance research in the field of drug addiction and development of cures therefor;
(E) Grants to public institutions devoted to the care and treatment of narcotic addicts; and
(F) Grants for public health research, education and care.
§21-5F-5. Relation to other laws.
Any law of this state currently enacted shall not be deemed to be amended, rescinded or otherwise affected by any provision of this article, but shall continue in full force and effect.
NURSE OVERTIME COMPLAINTS
1.1. Scope. This legislative rule governs the procedures for the handling of nurse overtime complaints against hospitals in accordance with W.Va. Code §21-5F-4 and W.Va. Code 29A-5-1 et seq.
1.2. Authority. -- W. Va. Code §21-5F-4.
1.3. Filing Date. -- April 7, 2006.
1.4. Effective Date. -- July 1, 2006.
§42-30-2. Application and Enforcement.
2.1. Application. This legislative rule applies to the West Virginia Division of Labor and all persons, firms or corporations governed or otherwise defined under the coverage of the West Virginia Code §21-5F-1 et seq.
2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor in accordance with West Virginia Code §21-1-3 et seq.
3.1. The “Act” means the Nurse Overtime and Patient Safety Act, W.Va. Code §21-5F-1 et seq., and this rule.
3.2. “Commissioner” means the commissioner of the West Virginia Division of Labor.
3.3. “Complaint” means the filing of allegations which indicate a violation of the Act or this rule and which requires an investigation by the division.
3.4. “Division” means the West Virginia Division of Labor.
3.5. “Hospital” means a facility licensed under the provisions of article five-v, chapter sixteen of this code, but does not include hospitals operated by state or federal agencies.
3.6. “Nurse” means a certified or licensed practical nurse or a registered nurse who is providing nursing services and is involved in direct patient care activities or clinical services, but does not include certified nurse anesthetists. Nurse managers are included with respect to their delivery of in-hospital patient care.
3.7. “On-call time” means time when the employee is off the clock and away from the employer’s premises but the employer maintains certain restrictions as to the employee’s use of that time. On-call time may exist while on the employer’s premises but is always regarded as on the clock.
3.8. “Overtime” means, for the purpose of this rule, the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift.
3.9. “Regularly scheduled shift” means a routinely scheduled work period which is predetermined and does not distinguish between full-time or part-time.
3.10. “Taking action against” means discharging; disciplining; threatening; reporting to the board of nursing; discriminating against; or penalizing regarding compensation, terms, conditions, location or privileges of employment.
3.11. “Twenty-four hour period” means the twenty-four hours immediately following a break of at least eight hours.
3.12. “Unforeseen emergent situation” means an unusual, unpredictable or unforeseen circumstance such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions or natural disasters. An unforeseen emergent situation does not include situations in which the hospital has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and scheduled health care worker medical leave.
§42-30-4. Overtime Restrictions.
4.1. No nurse may be required to work beyond their regularly scheduled shift except in unforeseen emergent situations that jeopardizes patient safety, when required to fulfill prescheduled on-call time, or when required to complete a single patient care procedure already in progress.
4.2. No nurse may be permitted to work in excess of sixteen consecutive hours in a twenty-four hour period, including voluntary overtime except in unforeseen emergent situations that jeopardizes patient safety, when required to fulfill prescheduled on-call time, or when required to complete a single patient care procedure already in progress.
4.3. On-call time which is off premises and compensation is not required by federal or state law shall not be considered as time worked when calculating the maximum permissible hours to be worked.
4.4. On-call hours which are on the employer’s premises or for which law required the employee to be paid compensation shall be considered as work time when calculating the maximum permissible hours to be worked.
4.5. A nurse shall be given a break of at least eight hours after working twelve consecutive hours. If the twelve hour maximum is reached during a scheduled shift, the break may be delayed until the end of the shift or the sixteen hour maximum as required by W. Va. Code §21-5F and this rule.
4.6. An employer is prohibited from taking action against a nurse who refuses an assignment of overtime in violation of W.Va. Code §21-5F or for any action by a nurse relative to his or her rights to refuse overtime assignments. The filing of a complaint is considered a nurse’s right under the provisions of W. Va. Code §21-5F and this rule.
§42-30-5. Confidentiality of Records.
5.1. All investigations, complaints, reports, records, proceedings and other information received by the Division and related to complaints pursuant to this rule, including the identity of the complainant or respondent, are confidential and shall not be knowingly and improperly disclosed by any person, the commissioner or Division staff, except as follows:
(a) Upon a finding that probable cause exists to believe that a respondent has violated the provisions of the act, the complaint and all reports, records, non-privileged and non-deliberative materials introduced at any probable cause hearing held pursuant to the complaint are thereafter not confidential: Provided, that the confidentiality of the information shall remain in full force and effect until the respondent has been served with a copy of the statement of charges;
(b) Any subsequent hearing held in the matter for the purpose of receiving evidence or the arguments of the parties or their representatives shall be open to the public and all reports, records and non-deliberative materials introduced into evidence at the subsequent hearing, as well as the commissioner’s orders, are not confidential;
(c) The complaint as well as the identity of the complainant shall be disclosed to a person named as respondent in any complaint filed immediately upon the respondent’s request; or
(d) Where the commissioner or the Division is otherwise required by the provisions of the Act to disclose the information or to proceed in a manner that disclosure is necessary and required to fulfill the requirements.
5.2. If, in a specific case, the commissioner or Division finds that there is a reasonable likelihood that the dissemination of information or opinion in connection with a pending or imminent proceeding will interfere with a fair hearing or otherwise prejudice the due administration of justice, the commissioner or Division shall order that all or a portion of the information communicated to the commissioner or the Division to cause an investigation and all allegations of violations or misconduct contained in a complaint is confidential, and the person providing the information or filing a complaint is bound to confidentiality until further order of the commissioner.
Nurses Overtime & Safety Act Poster