New Requirements for Uninterrupted Meal and Rest Breaks and Hospital Staffing Policies for Nurses, Technicians, and Technologists

 

To:                   Hospital CEOs, CNOs, CMOs, Legal Counsel, Human Resources Leaders, and Govn’t. Affairs Staff

From:              Lauren McDonald, Policy Director, Health Access | LaurenM@wsha.org | (206) 577-1821

Subject:          New Requirements for Uninterrupted Meal and Rest Breaks and Hospital Staffing Policies for Nurses, Technicians, and Technologists

Purpose

The purpose of this bulletin is to inform hospitals and health systems about House Bill 1155, otherwise known as the “breaks bill” or “nurse staffing” legislation. The newly enacted law impacting meal and rest break policies, use of mandatory overtime and on-call, and provision of rest between shifts for nurses and certain technicians and technologists in hospital settings.

Applicability/Scope

The new law impacts hospitals licensed under chapter 70.41 RCW, psychiatric hospitals licensed under chapter 71.12 RCW, hospices licensed under chapter 70.127 RCW, and rural health care facilities as defined in RCW 70.175.020. The law also impacts nursing homes or home health agencies if they are operated under the license of one of the types of facilities listed above.

The applicability and timing of implementation differ for several components of the new law, depending on the type of facility and employee. See below for more information.

Recommendations

1. Review this bulletin and the final text of the legislation with legal counsel, human resources executives, and nursing leadership to determine the impact on your hospital or facility and any resulting changes that must be made to staffing and/or scheduling policies and practices.
2. Determine your hospital’s compliance strategy and consider policies and procedures that not only comply with the new law but that also are consistent with your hospital’s goals for high-quality, patient-centered care that support the sustainability of your workforce and organization.
3. Inform staff who have responsibility for managing affected employees about the implications of the new law on staffing and/or scheduling policies and practices at your facility.

Overview

A.  New requirement to provide nurses, technologists, and technicians with uninterrupted meal and rest breaks

Section 1 of the new law requires hospitals licensed under chapter 70.41 RCW to provide uninterrupted meal and rest breaks for nurses and certain technologists and technicians.

Key provisions:

1. Uninterrupted meal and rest breaks are required. Hospitals must provide nurses and certain technologists and technicians with uninterrupted meal and rest breaks, subject to the exceptions noted below. Rest periods must be scheduled at any point during each work period during which the employee is required to receive a rest period.
2. Scheduling breaks: The new law states: “Rest periods must be scheduled at any point during each work period during which the employee is required to receive a rest period.” The law does not define “scheduled” for this purpose, allowing some flexibility in implementation.
3. Allowances for interruptions in certain circumstances: As a result of WHSA’s advocacy, the requirement to provide uninterrupted breaks includes several important reasons for which breaks can be interrupted for patient care. Section 1(1)(b) of HB 1155 describes the circumstances in which breaks may be interrupted:

• • An unforeseeable emergent circumstance, as defined in RCW 49.28.130, meaning: “(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.”
  • “A clinical circumstance, as determined by the employee, employer, or employer’s designee, that may lead to a significant adverse effect on the patient’s condition: (A) Without the knowledge, specific skill, or ability of the employee on break; or (B) Due to an unforeseen or unavoidable event relating to patient care delivery requiring immediate action that could not be planned for by an employer.”

4. Additional break required in certain instances of missed breaks: If a rest break is interrupted by an employer or employer’s designee before ten complete minutes for a clinical circumstance that may lead to a significant adverse effect on the patient’s condition, the employee shall receive an additional ten-minute uninterrupted break. This requirement for an additional break does not apply when a break is interrupted for an unforeseeable emergent circumstance. The additional break must be provided “at the earliest reasonable time during the work period during which the employee is required to receive a rest period.”

• • By providing this additional uninterrupted break, the break will not be considered missed and will satisfy the requirements of the minimum wage act as defined by chapter 49.46RCW.

5. Recording missed breaks: Hospitals are required to provide a mechanism to record missed breaks for employees. Employers are required to maintain these records. The law does not specify a specific timeline for maintaining these records, leaving hospitals flexibility to determine internal policies that align with other records retention policies.

 Key definitions for this section:

1.  Which employers are subject to the new requirements: For the purposes of the new requirements for meal and rest breaks, “employer” is defined in HB 1155, section 1(3)(b) as hospitals licensed under chapter 70.41 RCW. The effective date is delayed for certain types of hospitals – see “effective dates” section below.
2. Which employees are subject to the new requirements: The new meal and rest break requirements apply to any employee who meets the following four criteria:

• Is employed by a health care facility;
• Is involved in direct patient care activities or clinical services;
• Receives an hourly wage or is covered by a collective bargaining agreement; and
• Is a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a nursing assistant-certified as defined in RCW 18.88A.020.

Effective dates:

 With notable exceptions, the new meal and rest break provisions go into effect for hospitals licensed under 70.41 RCW on January 1, 2020.

Certain small hospitals have until July 1, 2021, to comply with the new meal and rest break requirements, giving them additional time to plan for and implement the new law. These hospitals are:

• Hospitals certified as critical access hospitals under 42 U.S.C. Sec. 1395i-4;
• Hospitals with fewer than twenty-five acute care beds in operation; and
• Hospitals certified by the Centers for Medicare and Medicaid services as sole community hospitals as of January 1, 2013, that: have had less than one hundred fifty acute care licensed beds in fiscal year 2011; have a level III adult trauma service designation from the Department of Health as of January 1, 2014; and are owned and operated by the State or a political subdivision.

B. New provisions impacting mandatory overtime and mandatory on-call for nurses, technologists and technicians

Sections 2 and 3 of HB 1155 amend the current statute regarding mandatory overtime for nurses to make several significant changes:

1. Certain technologists and technicians are now subject to the mandatory overtime law.
2. Added new requirements for when mandatory prescheduled on-call can and cannot be used.
3. Hospitals must provide employees with the option of eight hours of rest between shifts in certain circumstances.

 Key provisions:

1. Extension of mandatory overtime prohibition to technologists and technicians: The law extends the mandatory overtime prohibition currently in place for nurses to technicians and technologists.There is no change for the use of voluntary overtime for nurses and techs. In addition, the law still includes exceptions for overtime work due to “unforeseeable emergency circumstances” (declared emergencies or when a hospital’s disaster plan is activated, as defined in RCW 49.28.130); when the employer documents that they have used “reasonable efforts” to obtain staffing (defined in RCW 49.28.130); or when a patient care procedure is already in progress where the absence of the employee would have an adverse effect on the patient.
2. Clarifications to the use of mandatory on-call that causes overtime: The bill amends an existing law that allows prescheduled on-call as an exception to the ban on mandatory overtime. The use of prescheduled on-call time is amended to specify that there are limits to when mandatory prescheduled on-call can be used when it pushes an employee in to overtime: “(i) Mandatory prescheduled on-call time may not be used in lieu of scheduling employees to work regularly scheduled shifts when a staffing plan indicates the need for a scheduled shift; and (ii) Mandatory prescheduled on-call time may not be used to address regular changes in patient census or acuity or expected increases in the number of employees not reporting for predetermined scheduled shifts.”The restrictions to the use of on-call that causes overtime apply to mandatory prescheduled on-call only, and do not apply to voluntary on-call. The language allows hospitals to continue to use on-call for unanticipated increases in patient census or unplanned-for employee absences.
3. Provision of rest between shifts: If nurses or techs accept overtime and work for more than twelve hours (including non-overtime hours), they must be given the option for at least eight hours of consecutive rest between shifts. This is intended to support patient care by ensuring staff get the rest they need between shifts.

Key definitions for this section:

The mandatory overtime restrictions apply to “employees” of “health care facilities.”

The definition of “employee” is found in section 2 (1)(a) and is modified to add technologists and technicians: “Employee means a person who:

• Is employed by a health care facility;
• Is involved in direct patient care activities or clinical services;
• Receives an hourly wage or is covered by a collective bargaining agreement; and
• Is either a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW; or beginning July 1, 2020, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a nursing assistant-certified as defined in RCW 18.88A.020.”[1]

The definition of “health care facility” found at Section 2 (3)(a) remains unchanged compared to current law, except to describe differing effective dates for different types of organizations. We encourage you to read this section for the full list of facilities included.

Effective dates:

Effective dates for the extension of the prohibition on mandatory overtime to techs:

• July 1, 2020, for technicians and technologists (see definition above) at facilities not meeting the criteria for the delayed implementation date.
• July 1, 2021, for technicians and technologists at certain small facilities to give additional time to plan for any necessary changes. Facilities with delayed implementation are:

1. 1. Hospitals certified as critical access hospitals under 42 U.S.C. Sec. 1395i-4;
   2. Hospitals with fewer than twenty-five acute care beds in operation; and
   3. Hospitals certified by the Centers for Medicare and Medicaid services as sole community hospitals as of January 1, 2013, that: have had less than one hundred fifty acute care licensed beds in fiscal year 2011; have a level III adult trauma service designation from the Department of Health as of January 1, 2014; and are owned and operated by the State or a political subdivision.

Effective dates for the new laws dictating use of on-call and provision of rest between shifts:

• January 1, 2020, for nurses (RNs and LPNs) at facilities not meeting the criteria for the delayed implementation date.
• July 1, 2020, for technicians and technologists (see definition above) at facilities not meeting the criteria for the delayed implementation date.
• July 1, 2021, for employees at critical access hospitals, hospitals with fewer than 25 beds in operation, and sole community hospitals meeting specific criteria (see list in the above section for precise applicability). This gives smaller facilities additional time to plan for any necessary changes.

Next Steps

WSHA’s Safety & Quality team will be supporting implementation efforts to ensure that hospitals are successful under this new law. WSHA’s implementation work with hospitals will emphasize evidence-based hospital staffing strategies. Through this implementation work, WSHA will be able to provide hospitals tools, educational opportunities and resources, and direct assistance to ensure success under the new law.

As part of this process, WSHA will utilize the Nurse Staffing Advisory Group to help determine which resources and tools need to be developed to help hospitals. This Group provided guidance to WSHA throughout session and includes nursing leadership and government affairs staff representing various types of hospitals.

If your CNO or another leader from your organization is interested in joining this group, please contact Trish Anderson at TrishA@wsha.org.

Background

Prior to passage of HB 1155, Washington hospitals were required to provide meal and rest breaks to employees, but intermittent breaks for employees were permissible when the nature of the work allows. In addition, mandatory overtime has been prohibited for nurses working in hospital settings, with certain exceptions for patient care.

For the past ten years, nursing unions have proposed legislation that would require uninterrupted breaks with very few exceptions for patient care and would severely limit the use of on-call and overtime for nurses and other clinical staff in hospital settings. The unions claimed that this legislation was necessary to address nurse fatigue.

Throughout this debate, WSHA opposed this legislation citing concern the restrictions on hospital staffing would negatively patient care and noting the lack of evidence the proposed policies would address nurse fatigue. WSHA also expressed concerns about the impact of the legislation given the significant shortage of nurses, technologists and technicians and other hospital clinical staff. Through direct advocacy from our members, we were able to secure several important modifications to the proposed legislation that will help mitigate its impacts. These provisions include:

• Including additional exceptions to uninterrupted meal and rest breaks that allow hospitals to respond to patient care needs;
• Ensuring that if a rest break is interrupted, an additional rest break is required only if the break is interrupted prior to ten complete minutes, rather than 15 minutes;
• Ensuring that the requirement to provide an additional rest break is only applicable if the original rest break is interrupted by the employer or employer’s designee, rather than the employee, and that if an additional rest break is provided, the break shall not be counted as missed;
• Eliminating an onerous provision that would have required hospitals to document the clinical reason for a break being interrupted, which would have been extremely challenging for hospitals to implement;
• Eliminating the requirement that hospitals record when breaks are taken (rather than the requirement to record missed breaks) would have added significant administrative burden for facilities without any benefit to patient care;
• Preserving the ability of hospitals to use mandatory on-call time for situations where it is unreasonable to predict staffing needs, due to fluctuating patient volumes or acuity, or unpredictable employee absences;
• Preserving the ability of hospitals to use voluntary on-call time;
• Preventing significant restrictions to mandatory overtime that would have led to delays in patient care and restricted access to care for many patients; and
• Securing a delayed effective date for rural facilities meeting certain definitions, to ensure they have additional time to plan for any changes to staffing as it can be exceptionally difficult to recruit and retain staff in rural areas;

References

• Final text of HB 1155
• As noted above, WSHA will be creating additional resources as needed to assist hospitals to understand the new law.