L&I’s Policy on Hospital Mandatory Overtime Prohibition

New Administrative Policy: Hospital Action May be 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:	L&I’s Policy on Hospital Mandatory Overtime Prohibition

Purpose
The purpose of this bulletin is to share information about the prohibition on mandatory overtime as described in the updated administrative policy issued by the Department of Labor and Industries (L&I) on June 20, 2024. The administrative policy can be found here:

A.1, Law Restricting Mandatory Overtime for Certain Healthcare Workers

This updated administrative policy provides L&I’s updated interpretation of the statutes prohibiting mandatory overtime for certain health care workers under RCW 49.28.130, RCW 49.28.140, and RCW 49.28.150.

Applicability/Scope
The laws prohibiting mandatory overtime apply to acute care hospitals licensed under Chapter 70.41 RCW, psychiatric hospitals licensed under Chapter 71.12 RCW, and several other non-hospital health care facilities.

These laws offer special protections to certain covered employees. As of January 1, 2025, the law applies to staff who meet all three of the following criteria. To be covered employees, staff must be:

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

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 definition of covered employee does not expand until July 1, 2025.

Recommendations

Review this bulletin, the administrative policy, RCW 49.28.130, RCW 49.28.140, and RCW 49.28.150 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.
Share this bulletin and other WSHA resources with appropriate hospital colleagues.
Take steps to update and implement internal hospital policies and staff and supervisor education.

Background
The prohibition on mandatory overtime under RCW 49.28.130 – 150 was first enacted for registered nurses and licensed practical nurses working in acute care and psychiatric hospitals in 2002.

The law was expanded by the legislature in 2019 (effective July 1, 2020 for most hospitals and July 1, 2021 for critical access hospitals and non-system rural hospitals). Changes included:

expanding the definition of covered employee to include certified nursing assistants (CNAs), surgical techs, radiologic techs, and respiratory care technicians;
limiting the use of an exception to the prohibition on mandatory overtime that is worked due to pre-scheduled on-call time; and
adding a requirement that an employee working more than twelve consecutive hours must be provided the option to have at least eight consecutive hours of uninterrupted time off following that shift.

In 2023, E2SSB 5236 further updated the law by (1) adding another restriction to the use of the exception to the prohibition on mandatory overtime due to pre-scheduled on-call time and (2) revising the enforcement and penalties provisions under RCW 49.28.150.

In 2024, SHB 2061 expanded the definition of covered employee to match the definition in the meal and rest break law beginning in 2025 (see below for more information).

Also this year, L&I engaged in a process to update its administrative policy interpreting these laws due to the changes made in 2023-2024. WSHA and hospital members worked extensively to advocate for improvements to this administrative policy. We were successful in several areas and the draft administrative policy published for public comment largely reflected the law as we read it.

Overview of HLS.A.1 – Mandatory Overtime Administrative Policy

I. Hospital employees covered by the law–beginning January 1, 2025 or July 1, 2025

As of January 1, 2025, the new law expands application of the mandatory overtime law to many more hospital employees. The law will apply to staff who meet all three of the following criteria. To be covered employees, staff must be:

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

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.

WSHA strongly disagrees with the part of the definition of “direct patient care activities” stating that an individual providing support to clinical staff is involved in direct patient care if the support staff is stationed in a clinical unit. In our view, support staff is, definitionally, not involved in direct patient care. However, despite months of advocacy and strong evidence from the legislative history, we were unable to persuade L&I of our position.

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. Framework of Mandatory Overtime Prohibition

Hospitals cannot require covered employees to work mandatory overtime, except under four circumstances. Covered employees can always volunteer to work overtime.

The four exceptions are summarized in the administrative policy as:

When overtime is caused by an unforeseeable emergent circumstance;
When overtime is caused by prescheduled on-call time;
When the employer uses and documents reasonable efforts to obtain staffing but cannot avoid overtime; or
When an employee is required to work overtime to complete a patient care procedure already in progress and it could be detrimental to the patient if the employee left. See RCW 49.28.140(3).

Additionally, when an employee works overtime and works more than twelve consecutive hours, the hospital must provide the employee with the option of having at least eight consecutive hours of uninterrupted time off work.

The administrative policy includes several interpretations of note excerpted here:

An offer of overtime to an employee is not considered voluntary if it does not specify that the overtime is entirely voluntary, or if it coerces, compels, or induces the employee to accept the overtime.

Examples of compelling or inducing an employee to accept overtime that would make the overtime offer appear non-voluntary may include: implying consequences, such as less desirable shift scheduling or work assignments, if the employee does not accept the overtime; using social-pressure tactics to induce accepting overtime such as questioning the employee’s dedication to the team or the patients or comparing the employee unfavorably to other team members who have pitched in or stayed to cover in the past; or compelling the employee’s compliance by suggesting the employee would be to blame for leaving a facility or area short- staffed.

WSHA disagrees that questioning an employee’s consideration of the impacts of their actions on the rest of the team constitutes “inducement” or that suggesting the employee would be to blame for leaving a facility short-staffed constitutes “compulsion,” but this is L&I’s interpretation of the law.

III. Four Exceptions to the Prohibition on Mandatory Overtime

1. Overtime caused by an unforeseeable emergent circumstance
The law defines an unforeseeable emergent circumstance as:

Any unforeseen declared national, state or municipal emergency;
When a health care facility disaster plan is activated; or
Any unforeseen disaster or other catastrophic event that substantially affects or increases the need for health care services. See RCW 49.28.130(7).

According to the administrative policy, a circumstance must be both something a hospital could not predict and something that is newly arising. The policy notes: “the department would generally presume that a circumstance is no longer newly arising if it has continued 90 days or more, and the unforeseen emergent circumstance exception would therefore no longer apply.” WSHA interprets this to mean that, had this policy been in place, hospitals would have no longer been able to claim this exception and require mandatory overtime due to the COVID-19 pandemic as of May or June 2020.

2. Overtime caused by pre-scheduled on-call time
As described in the administrative policy: “If an employee worked mandatory overtime as a result of being called in during prescheduled on-call time, that overtime is not a violation.”

L&I notes that, in order to require mandatory overtime using this exemption, employees must be prescheduled to take call. They cannot be placed on a call list in the moment when staff is needed:

Prescheduled on-call time does not include situations when additional employees are placed on-call who were not previously scheduled for on-call time. For example, when an employer seeks additional on- call coverage because the scheduled on-call employee or employees were called-in during their prescheduled, on-call time. It also does not include post-scheduling changes that necessitate additional on-call employees or placing an employee on call in a last-minute effort to cover an open shift.

Limits on when the exception may be used – Additionally, there are three statutory limitations to when this exception may be used to justify mandatory overtime. Mandatory prescheduled on-call time may not be used:

In place of scheduling employees to work regularly scheduled shifts when a staffing plan indicates the need for a scheduled shift;
To address regular changes in patient census or acuity or expected increases in the number of employees not reporting for predetermined schedules shifts; or
To begin at a time when the duration of [a scheduled] procedure is expected to exceed the employee’s regular scheduled hours of work, except for the case of a non-emergent patient procedure that in the judgement of the provider responsible for the procedure believes a delay would cause a worse clinical outcome. See RCW 49.28.140(3)(b)(i)-(iii).

The administrative policy does not provide any additional interpretation of the statutory language establishing the three limitations on when the prescheduled on-call exception may be used.

3. The hospital uses and documents reasonable efforts to obtain staffing but cannot avoid overtime
A hospital may require mandatory overtime if the hospital makes and documents reasonable efforts to obtain staffing coverage but is unable to do so. Prior to requiring mandatory overtime, the hospital must complete each of these four steps to the extent reasonably possible (in any order):

Seek qualified staff who are willing to volunteer for extra work;
Contact qualified staff who have made themselves available for extra work;
Seek the use of qualified per diem staff; and
Seek personnel from a contracted temporary staffing agency, as permitted by law or a collective bargaining agreement, when the employer regularly uses a temporary agency. See RCW 49.28.130(6).

The administrative policy notes: “If an employer secures enough overtime volunteers to cover the staffing need during any of the four steps, it need not complete additional steps so long as it no longer needs to mandate overtime for additional employees.”

Required documentation – The statute requires hospitals to document that the four reasonable efforts steps were taken prior to mandating overtime. The administrative policy states that:

The employer must retain this documentation for a period of three years. Mandatory overtime instituted without documentation that shows each step was completed prior to mandating overtime is presumed to violate the mandatory overtime prohibition

Limits on when the exception may be used – The reasonable efforts exception may not be used to justify mandatory overtime to fill vacancies resulting from chronic staff shortages. See RCW 49.28.140(3)(c).

The administrative policy defines a chronic staffing shortage as when a hospital has vacancies that are either long-standing or frequently recurring. The policy notes that “a long-standing vacancy is generally considered one that has been open and/or under active recruitment for at least 90 days” and a frequently recurring staffing shortage results from “vacations, medical leaves, leaves of absence, regularly anticipated turnover, expected changes in program rotations, residency or other short-term program departures, and other absences or staffing shortages that should be readily anticipated by the facility.”

The policy then provides this table to determine whether the hospital may use the reasonable efforts exception based on these definitions:

4. Mandatory overtime is required to complete a patient care procedure already in progress
A hospital may require an employee to work overtime to complete a procedure already in progress where the absence of the employee could have an adverse effect on the patient. See RCW 49.28.140(3)(d).

The administrative policy adds that: “The determining factor for this exception is whether the absence of the specific, covered employee could have an adverse effect on the patient.”

As with any overtime, if an employee volunteers to stay to complete a patient care procedure already in progress, the hospital is not requiring mandatory overtime, so the overtime is permissible.

IV. Complaint Investigations, Penalties, and the Possibility of Civil Litigation

The administrative policy does not describe the complaint investigation or penalty process related to this law, but it provides an email address for employees to lodge complaints.

RCW 49.28.150 was amended by E2SSB 5236 to refer to the new RCW 49.12.145, which was modeled after a long-standing administrative penalty process used by L&I. It permits employees to lodge complaints about non-compliance with the mandatory overtime prohibition and requires L&I to investigate the complaints. If L&I finds a violation occurred following the investigation, L&I must order the employer to pay the department a civil penalty as follows:

Up to $1,000 for each violation, up to three violations.
$2,500 for the fourth violation
$5,000 for each subsequent violation.

We would also note that trial lawyers have successfully relied upon state standards as the basis for class action lawsuits against hospital employers.

Next Steps

Review the L&I administrative policy: A.1, Law Restricting Mandatory Overtime for Certain Healthcare Workers
Make policy and operational changes in response to L&I’s updated administrative policy. This may include developing internal hospital policies and educating staff and supervisors.
Continue to participate in WSHA educational opportunities.
Monitor L&I’s healthcare labor standards webpage for policy updates.

Background and References

June 24, 2024

Contacts

Ashlen Strong

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