Meal and Rest Break Compliance Reporting Form and Tracking Process – Begins July 1, 2024

 

New Law: Hospital Action Required

 

To:	Hospital Chief Executive Officers, Chief Nursing Officers, Chief Financial Officers, Human Resources Leaders, In-House Legal Counsel, and Government Affairs Leaders
Staff Contact:	Ashlen Strong, JD, MPH, Vice President, Government Affairs AshlenS@wsha.org | (206) 216-2550
Subject:	Meal and Rest Break Compliance Reporting Form and Tracking Process – Begins July 1, 2024

 

Purpose
The purpose of this bulletin is to share information about the meal and rest break compliance reporting process finalized by the Department of Labor and Industries (L&I) on May 23, 2024. The compliance reporting process is documented in two documents published by L&I:

• Meal and Rest Break Hospital Quarterly Self Report Form FIELDS
• Meal and Rest Break Hospital Quarterly Self Report Guidance

Under RCW 49.12.480 (updated by E2SSB 5236 in 2023), most acute care hospitals are required to begin tracking compliance with meal and rest break obligations beginning July 1, 2024. The first quarterly report of each hospital’s compliance rate will be due October 30, 2024. Penalties for non-compliance do not apply until July 2026.

Applicability/Scope
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.

Recommendation

1. Review this bulletin, the compliance reporting form and guidance document, and RCW 49.12.480 to understand your hospital’s compliance reporting 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. Follow the compliance reporting process prescribed by L&I. This may include developing internal hospital policies, updating meal and rest break tracking systems and processes, and educating staff and supervisors.

Overview
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.

WSHA and hospital members worked extensively to advocate for improvements to this guidance document and reporting process. 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.  Unfortunately, L&I adopted some sections of the guidance with which WSHA and hospital members disagreed, despite WSHA’s and hospitals’ strong advocacy against them.

The remainder of this overview outlines the changes to the meal and rest break law and new meal and rest break compliance reporting requirements beginning July 1, 2024.

Changes to the uninterrupted meal and rest break law – beginning July 1, 2024
As of July 1, 2024, the new law expands application of the uninterrupted meal/rest breaks law to all acute care hospital employees (not contract/travel staff) who:

• are involved in direct patient care activities or clinical services; and
• receive an hourly wage or are covered by a collective bargaining agreement.

The guidance document 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.”

• The L&I guidance document provides a list of presumptively covered employees on page 4.

New definition of clinical circumstances
The new law also changed the definition of the “clinical circumstances” exemption under RCW 49.12.480, so the determination of whether taking an uninterrupted break may lead to a significant adverse effect on the patient’s condition is made by the employee, unless the employer determines the patient may suffer life-threatening adverse effects.

Ability to bundle breaks
The new law also allows employees to agree with employers to bundle meal periods and rest periods to take a longer break. If the employee is required to stay on duty during the bundled break, the entire break will be paid. If the employee is released from duty, the portion corresponding to the meal break will be unpaid and the portion corresponding to the rest break will be paid. The L&I guidance document notes this about how bundled meal and rest breaks should be tracked:

“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.”

New compliance reporting related to uninterrupted meal/rest breaks
Beginning in October 2024, most 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

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.

Break timing requirements for reporting purposes
The guidance document also outlines the meal and rest break timing requirements for covered employees. This is important because untimely breaks should be counted as “missed” unless it is a meal period for which the timing requirement has been waived (see above).

The following is taken directly from the L&I guidance document (referring to WAC 296-126-092):

“Meal Periods:

• Employees are entitled to a meal period when working more than five hours in a shift;
• The meal period must be at least 30 minutes long;
• The meal period must start between the second and fifth hour of the shift; and
• Employees may not be required to work more than five consecutive hours without a meal period.

Rest Breaks: 

• Employees are entitled to rest breaks of at least 10 minutes for every four hours worked.
• Employees may not be required to work more than three hours without a rest break.
• Rest breaks are to be scheduled as near as possible to the midpoint of the work period.

Table 2: 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.”

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.

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:

• 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

Next Steps

• Review the L&I guidance document and reporting form.
• Follow the compliance reporting process prescribed by L&I. 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 plan for release of upcoming resources on other laws and additional resources for implementation.

Background and References

• L&I meal and rest break compliance reporting guidance document
• L&I meal and rest break compliance reporting form
• 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
• 2023 E2SSB 5236