Hospital Meal and Rest Break Requirements

New Law: Hospital Action Required

To:	Hospital Chief Executive Officers, Chief Nursing Officers, Chief Financial Officers, Human Resources Leaders, In-House Legal Counsel, Risk and Compliance Leaders and Government Affairs Leaders
Staff Contact:	Ashlen Strong, JD, MPH, Vice President, Government Affairs ashlens@wsha.org | 206-216-2550
Subject:	Hospital Meal and Rest Break Requirements

 

Purpose
The purpose of this bulletin is to share information about acute care hospital meal and rest break requirements according to the Department of Labor and Industries (L&I)’s administrative policy issued on June 20, 2024. The administrative policy can be found here:

• A.2, Meal and Rest Break Protections for Certain Healthcare Workers

This new administrative policy provided L&I’s interpretation of both:

• The meal and rest break statutes specific to acute care hospitals (RCW 49.12.480 – RCW 49.12.483 as updated by E2SSB 5236 in 2023); and
• The Industrial Welfare Act’s meal and rest break regulations that apply to all non-exempt workers in Washington (WAC 296-126-092) as they relate to hospital employees.

Applicability/Scope
The hospital specific meal and rest break laws (RCW 49.12.480 – 483) apply to acute care hospitals licensed under Chapter 70.41 RCW.

These laws offer special protections to certain covered employees. As of July 1, 2024, the law applies to staff who meet all three of the following criteria.

To be covered employees, staff must be:

1. Employees of the hospital (not including contract/travel staff); and
2. Involved in direct patient care activities or clinical services; and
3. Receive an hourly wage or be covered by a collective bargaining agreement.

WAC 296-126-092 is the general WAC that applies to all non-exempt employees in the state, with the exception of agricultural workers. HLS.A.2  is L&I’s further interpretation of this WAC, but it is specific to hospitals. L&I has shared with WSHA that this interpretation will apply to all employees covered under the WAC.

Recommendation

1. Review this bulletin, the administrative policy, RCW 49.12.480 – 483, and WAC 296-126-092 to understand your hospital’s compliance obligations. WSHA cannot offer legal advice to members and recommends hospitals engage legal, risk, compliance, and human resources leadership as appropriate to evaluate compliance with the law as interpreted by L&I.
2. Share this bulletin and other WSHA resources with appropriate hospital colleagues.
3. Take steps to update and implement internal hospital policies, meal and rest break tracking and payment systems and processes, and staff and supervisor education.

Background
Acute care hospitals have special uninterrupted meal and rest breaks obligations to certain covered employees under RCW 49.12.480. This law has been effective since 2019 (or 2021 for some rural hospitals). L&I has not published an administrative policy or interpretation of this law until now. Administrative policies are not laws in and of themselves, but they provide a guide to the way the agency will interpret, apply, and enforce relevant statutes, regulations, and policies.

Part of the new hospital staffing law (2023’s E2SSB 5236), now in RCW 49.12.480 and RCW 49.12.483, changed acute care hospitals’ obligations regarding uninterrupted meal and rest breaks for certain staff and created a new compliance reporting and enforcement process.

In 2024, WSHA and hospital members worked extensively to advocate for improvements to this administrative policy. We were successful in several areas—for example, unions originally asked to include environmental services and kitchen staff in the definition of “involved in direct patient care activities,” and L&I did not ultimately include them. Also, L&I originally intended to prohibit hospitals from sharing the meal break waiver process with employees, and the final administrative policy does not include this prohibition. Unfortunately, L&I adopted some sections of the policy with which WSHA and hospital members strongly disagree, despite WSHA’s and hospitals’ persistent advocacy against them.

Overview of HLS.A.2 – Meal and Rest Break Administrative Policy

I. Hospital employees covered by the additional meal and rest break protections–beginning July 1, 2024

As of July 1, 2024, the new law expands application of the uninterrupted meal/rest breaks law to many more hospital employees. As of July 1, 2024, the law applies to staff who meet all three of the following criteria.

To be covered employees, staff must be:

1. Employees of the hospital (not including contract/travel staff); and
2. Involved in direct patient care activities or clinical services; and
3. Receive an hourly wage or be covered by a collective bargaining agreement.

The administrative policy defines “direct patient care activities” and “clinical services” as follows:

Direct patient care activities are those that involve contact with patients to provide care and services. Direct patient care activities include assessment, diagnosis, treatment, prevention of diseases and injuries, and health support and promotion activities. An individual may be considered to be involved in direct patient care activities when they are primarily stationed within a clinical unit and provide direct support to clinical staff by coordinating patient care and other services. Contact may be hands-on, remote or virtual, or other direct patient contact.

Clinical services are provided by people with clinical training and are services related to the screening, assessment, observation, treatment, counseling, and care of a patient. Clinical services include nursing, therapeutic, technical, nutritional, social, and other services directly involved in the support of a patient’s clinical plan of care.

a. List of presumptively covered employees
The administrative policy does not include a list of presumptively covered employees, but you can find it on page 4 of L&I’s guidance document on meal and rest break compliance reporting and excerpted below.
Note: any position listed below must also meet all three criteria above to be covered by the law. For example, if your ARNPs or PAs are not either paid hourly or subject to a CBA, then they are not covered employees. If an employee happens to have a social work credential but is not working in direct patient care or clinical services, then they are not covered employees.

II. Required Meal and Rest Periods

The administrative policy provides the following chart to show the minimum number of breaks required based on shift lengths:

* Depending on timing of meal periods. An employee cannot work more than five hours without a meal period [unless it is properly waived].

a. Meal period timing
The following timing requirements apply to meal periods for covered employees.

This is taken directly from the administrative policy:

• An employee working more than five hours must receive a 30-minute meal period between the second and fifth hour of work.
• A second, 30-minute meal period must be given within 5 hours of the end of the first meal period, and for each five hours worked thereafter.
• Employees working at least three hours longer than a normal workday shall be allowed a meal period before or during the overtime portion of the shift. A “normal work day” is the shift the employee is regularly scheduled to work.
  • If the employee’s scheduled shift is changed by working a double shift, or working extra hours, the additional meal period may be required.
  • Employees working a regular 12-hour shift who work 3 hours or more after the regular shift will be entitled to a meal period and possibly to additional meal periods depending upon the number of hours to be worked. See WAC 296-126-092(3).
• An employee working five consecutive hours or fewer would not need to be provided a meal period.
• Employees have the right to waive some meal period requirements. See Administrative Policy C.6.1 to review an employee’s waiver rights.
• Employees and employers have the right under RCW 49.12.187 to collectively bargain regarding rest break and meal period requirements not proscribed by statute, including for additional breaks, longer durations, meal period timing requirements, combined breaks, and similar entitlements.

b. Rest period timing
Employees must receive a 10-minute paid rest period for each four hours of working See WAC 296-126-092 and Administrative Policy ES.C.6.1. These rest breaks must be scheduled, one in each four-hour period the employee works. According to the administrative policy:

Unlike for workers in other industries, the rest breaks do not need to occur at a specific point in the four-hour period and can be scheduled at any point during the period in which the rest break is due. RCW 49.12.480(1)(a). …Although workers in some industries may receive ‘intermittent’ rest breaks, covered healthcare employees cannot.

c. Meal period waivers
Employees can request to waive meal periods or the timing requirements around meal periods in advance of the meal period. Rest periods cannot be waived. Meal break waivers must be completely voluntary. L&I recommends obtaining a written request from employees choosing to waive a meal period to document that the request was made before the meal period commenced and was voluntary. Hospitals may refuse to allow meal period waivers and may require employees to take their meal periods. Note the following excerpts from the administrative policy:

An employee may request to waive a single meal period, or multiple meal periods at once, so long as the waiver is requested before the meal period commences.

The employee may at any time withdraw a request to waive a meal period, or request the meal period be reinstated. An employer must provide a timely and compliant meal period if an employee withdraws a waiver request.

A meal period waiver will not be considered entirely voluntarily if an employer: (1) utilizes a default or “opt-out” waiver, (2) induces an employee to waive meal periods, or (3) includes a waiver in a form or setting in which an employee may not understand the waiver is entirely voluntary or feels compelled to sign the waiver.

Waivers or waiver forms therefore cannot be presented as the primary or default option in new hire materials or scheduling forms, or in other similar employer-provided paperwork. An employer may, however, indicate that a waiver is available on request.

d. Meal and rest periods must be uninterrupted

Meal periods for covered employees must be uninterrupted and at least thirty minutes in length; rest periods must be uninterrupted and at least ten minutes in length. There are two exceptions when a meal or rest period may be interrupted: 1) Unforeseeable emergent circumstances; and 2) Unforeseeable clinical circumstances. See RCW 49.12.480(1)(a)(b).

• An unforeseeable emergent circumstance is defined as: (a) any unforeseen declared national, state, or municipal emergency; (b) when a health care facility disaster plan is activated; or (c) any unforeseen disaster or other catastrophic event which substantially affects or increases the need for health care services. See RCW 49.28.130.
• An unforeseeable clinical circumstance is one that may, as determined by the employee, lead to a significant adverse effect on the patient’s condition. The employer or its designee may interrupt a meal period during an unforeseeable clinical circumstance if they determine that the patient may suffer life threatening adverse effects. See RCW 49.12.480(1)(b)(ii). This was changed in SB 5236, so now the onus is on the employee to decide whether to interrupt their own break for a “significant adverse effect” on the patient’s condition. The employer may interrupt their break for “life threatening adverse effects.”

Since these are the only two exceptions in the statute, L&I interprets the requirement for breaks to be uninterrupted as un-waivable for meal periods (rest periods and their timing requirements cannot be waived):

As there are no other permitted reasons for interruptions or failure to complete the entire 30-minute meal period, an employee and employer cannot agree to waive or modify those requirements.

The administrative policy also states that even meal or periods interrupted for one of the two permissible exceptions does not allow for those breaks to be missed or shortened, so the breaks must be completed as soon as possible:

Although the above circumstances permit a meal or rest break to be interrupted, the law does not allow for missed or shortened breaks even in these circumstances. The breaks must be provided and, if interrupted for an allowable reason, completed as soon as possible

Further, L&I will consider a permissibly interrupted break that is not completed to be missed:

If the break is not completed, it is considered a missed break for the purposes of the requirements of RCW 49.12.480, RCW 49.12.483, and WAC 296-126-092

e. Documentation required
In the case of a permissibly interrupted break, the administrative policy also requires the hospital to “document the details of the event that lead to the interruption, and the employer must make the records relating to the interrupted break available to L&I upon request.”

f. NEW LAW – Combining meal and rest periods
One of the changes to the hospital specific meal and rest break statute (RCW 49.12.480) in SB 5236 was the addition of the ability for covered employees and hospitals to agree to combined or bundled breaks. Although WSHA and hospitals argued against this interpretation, L&I interprets the statute to allow only one meal period and one rest period to be combined:

If an employee is working for a period of time during which they are entitled to one or more meal periods and more than one rest period, the employer and employee can agree to combine one meal period with one rest period. A combined meal and rest period must generally still meet the timing requirements for both meal and rest periods, absent an applicable waiver or variance. A second rest period cannot also be combined with the same meal break. The employee may choose to cancel the agreement to combine the meal and rest period at any time.

As outlined in the statute, hospitals must pay for combined breaks as follows: “If the employee is required to remain on duty during the combined meal and rest period, the time shall be paid. If the employee is released from duty for an uninterrupted combined meal and rest period, the time corresponding to the meal period shall be unpaid, but the time corresponding to the rest period shall be paid.” RCW 49.12.480(1)(c).

Hospitals may decide that L&I’s interpretation of the statute is too complicated to implement and do not have to agree to a combined break requested by a covered employee.

g. NEW INTERPRETATION – Employee payment for missed, interrupted or untimely meal and rest periods
In this administrative policy, L&I is newly interpreting longstanding administrative code that applies to all non-agricultural non-exempt employees. However, it is doing so in a policy that applies only to hospitals. WSHA strongly disagrees with L&I’s new interpretation and is exploring next steps in our opposition. However, L&I considers this to be the interpretation of the law for acute care hospitals and covered employees beginning July 1, 2024.

This new interpretation requires additional compensation for missed, interrupted, and untimely meal and rest periods—beyond time worked. Because of these new payment requirements, having proper documentation for each covered employee’s meal and rest periods is critical.

The following tables outline L&I’s new interpretation for additional payment owed to employees beyond time worked. WSHA has bolded and italicized what we believe to be the new interpretation.

Meal Periods

Rest Periods
Below is the table for rest periods. Since rest periods are generally paid, a missed rest period does constitute additional time worked, so the new part of this interpretation is for the fully taken, uninterrupted but untimely rest periods on the final row of the table.

III. Recordkeeping for Meal and Rest Breaks

The administrative policy outlines the following recordkeeping requirements for acute care hospitals related to meal and rest breaks for covered employees:

Covered employers must provide employees with a system to document when they miss a meal or rest period, and the employer needs to maintain these records. Employees must be allowed to accurately record their missed or interrupted meal and rest periods. Employees must be free from coercion in the recording of their meal and rest periods. See RCW 49.12.483(4)(a)(ii).

IV. NEW LAW – Compliance Reporting for Meal and Rest Breaks

Please see WSHA’s bulletin on meal and rest break compliance reporting for more detailed information.

• Acute care hospitals licensed under Chapter 70.41 RCW that are not subject to a delay (below) must begin tracking compliance with meal and rest break requirements for covered employees on July 1, 2024.
• For all critical access hospitals, hospitals with fewer than 25 beds, independent sole community hospitals that are not owned by a system and a hospital located on an island in Skagit County, the meal and rest break reporting begins on July 1, 2026.

Beginning in October 2024, urban and system acute care hospitals are required to provide a quarterly report to L&I of the total meal and rest periods missed in violation of this law and the total number of meal and rest breaks required during the previous quarter.

Reports are due to L&I 30 calendar days after the conclusion of the calendar quarter (the first report will cover July – September 2024 and is due October 30).

• The L&I compliance reporting fields document outlines what information hospitals will be required to report on the quarterly reports.
• The L&I guidance document defines “total breaks missed” and “total breaks required” for compliance reporting purposes.

The following is taken directly from the guidance document:

Total Breaks Missed:  This category includes the following circumstances:

• • Breaks not taken;
  • Breaks taken after the required time [established by WAC 296-126-092];
  • Breaks interrupted for a non-allowable circumstance and not replaced with a full break during the required time period; and
  • Breaks interrupted for an allowable circumstance and never finished.

Total Breaks Required:  This category includes all breaks scheduled or required for a covered employee with the following exceptions:

• • Omits waived meal breaks.
  • Combined meal and rest breaks count as two (one meal, one rest break). Employers may designate which portions of the combined breaks are designated for each type of break and which were missed or interrupted if they have capacity to do so, but otherwise combined breaks are considered all-or-nothing in accordance with the table below.

Replacement Breaks or Replaced Breaks: As used throughout this guidance document, replacement breaks or replaced breaks are uninterrupted, full, and timely replacement breaks provided after an earlier break was impermissibly interrupted.”

Table 1: L&I Breakdown of Missed Breaks for Self-Reporting

 

a. Important caveat to meal break reporting requirements. The guidance document includes this statement:

“When a meal break or the timing requirements relating to a meal break is properly and voluntarily waived by an employee, the break is not considered missed.”

This means that if a hospital properly documents an employee’s individual waiver of a meal break or the timing requirements related to a meal break, then the hospital does not need to include the break as required (in the case of a waived break) or missed (in the case of a timing requirement waiver).
Note that this only applies to meal periods, not rest breaks.

b. Recordkeeping guidance
Although the law does not require any specific recordkeeping practices, L&I notes that it is required to investigate complaints related to meal/rest break compliance reporting, so the Department advises hospitals to maintain records for at least three years.

c. Enforcement of compliance reporting – Financial penalties begin July 1, 2026
If between July 1, 2024 and July 1, 2026, a hospital reports less than 80% compliance with uninterrupted meal/rest breaks in a quarter or fails to report, L&I will provide technical assistance to the hospital. If a hospital is still reporting less than 80% compliance after July 1, 2026, L&I will begin to impose penalties as follows:

• CAHs or up to 25 licensed beds: $5,000
• 26-99 licensed beds: $10,000 per quarter of non-compliance
• 100-299 licensed beds: $15,000 per quarter of non-compliance
• 300+ licensed beds: $20,000 per quarter of non-compliance

Penalties for critical access hospitals and non-system rural hospitals begin July 1, 2028.

Next Steps

• Review the L&I administrative policy: A.2, Meal and Rest Break Protections for Certain Healthcare Workers
• Make policy and operational changes in response to L&I’s new interpretation. This may include developing internal hospital policies, updating meal and rest break tracking systems and processes, and educating staff and supervisors.
• Continue to participate in WSHA educational opportunities.
• Monitor L&I’s healthcare labor standards webpage for policy updates.

WSHA’s 2024 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high priority bills that passed in 2024 to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.

Background and References

• A.2, Meal and Rest Break Protections for Certain Healthcare Workers
• L&I meal and rest break compliance reporting guidance document
  (list of presumptively covered employees on page 4)
• L&I’s healthcare labor standards webpage
• RCW 49.12.480 – Meal and rest breaks for health care facility employees
• RCW 49.12.483 – Meal and rest breaks for health care facility employees—Enforcement—Penalties—Retaliatory actions—Appeals
• L&I meal and rest break compliance reporting form
• 2023 E2SSB 5236