On August 6, 2012, Massachusetts Governor Deval Patrick signed into law Senate Bill 2400—"An Act improving the quality of health care and reducing costs through increased transparency, efficiency and innovation"—which, among other things, restricts the use of mandatory overtime for hospital nurses to emergency situations. The restrictions, effective as of November 4, 2012, are included in a lengthy bill intended to stem the state's spiraling healthcare costs.
Restrictions on Mandatory Overtime
The new law defines mandatory overtime as "hours worked by a nurse in a hospital setting to deliver patient care, beyond the predetermined and regularly scheduled number of hours that the hospital and nurse have agreed that the employee shall work." The law goes on to state that "in no case shall such predetermined and regularly scheduled number of hours exceed 12 hours in any 24 hour period." The law provides that mandatory overtime for nurses may be permitted whenever there is an "emergency situation where the safety of the patient requires its use and when there is no reasonable alternative available." Before that decision is made, the hospital must first make a "good faith effort to have overtime covered on a voluntary basis."
The law does not suggest when alternatives to mandatory overtime are considered reasonable or unreasonable, and hospitals are left to interpret what constitutes a "good faith" effort to staff emergencies without resorting to mandatory overtime. However, it is anticipated that hospitals will receive some guidance on what is considered an "emergency" from a new state agency called the health policy commission that will, according to the law, develop guidelines for making such a determination.
Hospitals must report instances of mandatory overtime, and the circumstances requiring it, to the Department of Public Health. These reports will be public documents.
Nurses May Not Work More Than 16 Hours in a 24-Hour Period
It is now unlawful for hospitals to require or allow nurses to work in excess of 16 consecutive hours in a 24-hour period. The law further requires nurses who work 16 consecutive hours to be given at least eight consecutive hours of off-duty time immediately after working such a shift.
No Discrimination or Retaliation Permitted
The new law prohibits discrimination, dismissal, discharge or other employment decisions based on a nurse's refusal to accept work in excess of the mandatory overtime provisions of the law. Although the law does not specify an individual cause of action for violations, hospitals should anticipate claims for wrongful termination based on the public-policy exception to at-will employment in Massachusetts.
Collective Bargaining Agreements Unaltered
The law states that it shall not be construed to "limit, alter or modify the terms, conditions or provisions of a collective bargaining agreement entered into by a hospital and a labor organization." Accordingly, existing collective bargaining agreements between hospitals and nurses unions that contain mandatory overtime procedures should exempt those hospitals from many of the provisions of the law.
What This Means for Employers
Massachusetts is the latest state to enact legislation restricting mandatory overtime for nurses. New York, New Jersey and Pennsylvania have all recently enacted similar statutes. Massachusetts employers may want to address the many issues raised by this new law with legal counsel prior to its effective date to ensure their compliance with the statute.