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Bill Prohibiting Forced Use of Overtime Among Nurses Proposed

By Jyoti Peswani

24 hours – a little too short? More often than not we either wish the day was longer or we could stuff more action in the hours there are. Like every excess, this one comes with a heavy price too. Sleep deprivation, chronic fatigue and inertia to name a few. Not to undermine other industries, but in the healthcare industry the effects of unreasonable overtime can cause fatal errors.

In the United States, unlike in most European countries, employment is “at will,” meaning that the employer can dismiss an employee for any reason or for no reason – except gender, race, age, or disability. Thus, employees who refuse to work overtime can lose their jobs or face other reprisals such as demotion or assignment to unattractive work or to less desirable shift times such as nights or weekends. Faced with the legal threat of these kinds of sanctions, many employees often work more hours than they would like and, in some cases, work an extreme number of hours well beyond the standard 40 a week.

The American Journal of Public Health in 1992 found that nurses in Massachusetts who work variable schedules (including mandated overtime shifts) were twice as likely to report an accident or error and two-and-one-half times as likely to report near-miss accidents (MassNurse News 2000). It concluded that these conditions were associated with “frequent lapses of attention and increased reaction time, leading to increased error rates on performance of tasks.”

Respondents to a poll (2,125 total) administered by the American Association of Critical Care Nurses in May-June 2000 found that 43% of their members’ hospitals have a mandatory overtime policy. The same poll found that responding members attributed mandatory overtime mainly (three-quarters of the reasons designated) to both routine short-staffing policies and a nursing shortage. Perhaps it is no coincidence that nurse’s aides were second only to truck drivers in the total number of cases of disabling injuries and illness.

In the light of the perils that threaten to compromise both nurse and patient safety, legislation was introduced in both the House and Senate. The bill, titled - The Safe Nursing and Patient Care Act of 2005, introduced by Rep. Pete Stark (D-CA) Rep. Steven LaTourette (R-OH) and Sen. Edward Kennedy (D-MA), that would strictly limit the practice of forcing nurses to work overtime.

The proposed legislation would address the current nurse staffing crisis in the U.S. by strictly limiting mandatory overtime among nurses, a dangerous practice that has contributed to a recent exodus of nurses from the nation's hospitals and a decline in safe, quality patient care. The American Nurses Association (ANA) has been at the forefront of the push for this legislation and worked collaboratively on its development with members of Congress and other organizations representing nurses. The ANA delegates voted almost unanimously to declare that refusing overtime does not constitute patient abandonment, from which nurses are legally prohibited.

There are other bodies that regulate hours, but there aren’t sufficient provisions that address this particular domain. For instance, The Fair Labor Standards Act of 1938 (FLSA), which regulates overtime, currently imposes no limits on overtime hours, nor does it prohibit dismissal or any other sanction for declining overtime work. Rather, the FLSA merely requires that payroll employees (who are not “exempt” from the overtime requirements of the FLSA) be paid an overtime premium of at least one-half of regular rate of pay for each hour worked over 40 during a work week.

Coming back to healthcare, The Safe Nursing and Patient Care Act would prevent healthcare facilities from forcing exhausted nurses to work extra shifts, an unsafe practice that puts both patients and nurses at risk. A study published in the July/August 2004 issue of Health Affairs, which found that the risk of making an error greatly increased when nurses worked shifts longer than 12 hours, when they worked significant overtime or when they worked more than 40 hours per week. This study reinforced findings of the 2003 Institute of Medicine Report, "Keeping Patients Safe: Transforming the Work Environment of Nurses," which found that nurses' long working hours pose a serious threat to patient safety.

If passed, the Safe Nursing and Patient Care Act would:

• Prohibit healthcare facilities that receive Medicare funding from requiring a registered nurse (RN) or licensed practical nurse (LPN) to work beyond an agreed to, predetermined, regularly scheduled shift. In no instance could a nurse be required to work more than 12 hours in a 24-hour period or for more than 80 hours in a two-week period.
• Include nondiscrimination protections for nurses who refuse overtime and for nurses who provide information and/or cooperate with investigations about the use of overtime.
• Include an exception in the case of a declared national, state or local emergency. Such an emergency would be in response to a disaster, not to a staffing deficiency resulting from management practices.
• Provide for a study by the Department of Health and Human Services on the maximum number of hours that may be worked by a nurse without compromising patient safety.

To counter staffing insufficiencies that are already occurring, many healthcare facilities have increasingly imposed mandatory overtime. Typically, an employer may insist that a nurse work an extra shift (or more) or face dismissal for insubordination, as well as being reported to the state board of nursing for patient abandonment, a charge that could lead to a loss of license. At the same time, ethical nursing practice prohibits nurses from engaging in behavior they know could harm patients, thus leading to a dilemma for many nurses.