The following is draft proposed rulemaking for the Prohibition of Excessive Overtime in Health Care Act that Labor & Industry is submitting to the Office of Attorney General. Labor & Industry will publish this proposed rulemaking in the Pennsylvania Bulletin following review and approval by the Attorney General. The public may provide comments to this rulemaking following this publication. Comment should be made to
jholzman@pa.gov.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART XII. BUREAU OF LABOR STANDARDS
CHAPTER 225. PROHIBITION OF EXCESSIVE OVERTIME IN
HEALTH CARE ACT REGULATIONS
§ 225.1. Definitions.
(a) Terms used in this chapter shall have the same meaning and be defined in the same manner as the Act.
(b) In addition to the provisions of subsection (a), the following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:
Act - The Prohibition of Excessive Overtime in Health Care Act (43 P.S. §§ 232.1-232.6).
Agreed to, predetermined and regularly scheduled daily work shift - The daily work shift agreed to by the health care facility or employer and an employee at the time of hiring or before the scheduled shift, or established by an agreement, contract or collective bargaining agreement governing the employee.
Bureau – The Bureau of Labor Law Compliance within the Department.
Chronic short staffing - Vacancies in the portion of the health care facility’s or employer’s staffing plan governing the employee’s work unit comprised of open positions that continually remain unfilled for at least 90 days. The term does not include absences relating to unforeseeable emergent circumstances.
Clinical care services – The diagnostic, treatment or rehabilitative services provided in a health care facility, including the following: radiology and diagnostic imaging, such as magnetic resonance imaging and positron emission tomography; radiation therapy; phlebotomy; electrocardiogram and electroencephalography; laboratory medical services; and respiratory therapy.
Clinically-related services- Services involving direct patient care or clinical care services.
Department - The Department of Labor and Industry of the Commonwealth.
Direct patient care – Activity or service where an employee provides direct service to a patient or resident in a clinical setting, including the emergency department, inpatient, bedside, operating room or other clinical specialty treatment area.
Employee- An individual as enumerated in section 2 of the Act (43 P.S. § 932.2) and § 225.2 (relating to employees).
Employer – A health care facility defined in section 2 of the Act (43 P.S. § 932.2 (definition of Health care facility) and § 225.3 (relating to health care facilities and employers) or the Commonwealth, a political subdivision or an instrumentality of the Commonwealth engaged in clinically-related services.
Health care facility - A facility defined in section 2 of the Act (43 P.S. § 932.2) and § 225.3 (relating to health care facilities and employers).
On-call time - Time spent by an employee who is not currently working on the premises of the place of employment and the employee is compensated for availability or, as a condition of employment, has agreed to be available to return to the premises of the place of employment on short notice if the need arises.
Overtime- Work hours that exceed the employee’s agreed to, predetermined, regularly scheduled shift under section 3(a) of the Act (43 P.S. § 932.3(a)).
Political subdivision - A county, city, borough, incorporated town, township, school district, vocational school district and county institution district.
Retaliation- Includes any of the following acts committed against an employee by a health care facility or an employerwhich is prohibited by section 3(b) of the Act (43 P.S. § 932.3(b)) and § 225.12(e) (relating to violations):
(i) Discrimination.
(ii) Dismissal.
(iii) Discharge.
(iv) Suspension.
(v) Reprimand.
(vi) Demotion.
(vii) Withholding of pay, leave or benefits.
(viii) Refusal to promote.
(ix) Scheduling less-desirable work shifts.
(x) Transfer to less-desirable position.
(xi) Negative performance evaluation.
(xii) Punitive scheduling or denial of voluntary overtime.
(xiii) Intimidation defined as forcing or deterring an employee from some action by inducing fear.
(xiv) Any employment decision adverse to an employee.
Secretary- The Secretary of the Department or the Secretary’s designee.
§ 225.2. Employees.
(a) Under section 2 of the Act (43 P.S. § 932.2), an employee is one of the following:
(1) An individual employed by a health care facility who is involved in direct patient care activities or clinical care services and who receives either an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes. This individual does not have to work on the site of the health care facility or employer.
(2) An individual employed by the Commonwealth or a political subdivision or instrumentality of the Commonwealth who is involved in direct patient care activities or clinical care services and who receives either an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes. The individual does not have to be employed at a health care facility.
(3) An individual employed through a personnel agency that contracts with a health care facility to provide personnel for direct patient care or clinical care services.
(4) A home health care worker employed by a health care facility or employer and who receives either an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes.
(5) An individual providing direct patient care or clinical care services at any intermediate care facility for the mentally retarded (ICF/MR) under 55 Pa. Code § 6210.3 (relating to definitions).
(b) The Act does not govern an individual who is not an employee under the Act which includes any of the following:
(1)Physician.
(2)Physician assistant.
(3)Dentist.
(4) A worker involved in environmental services, clerical, maintenance, food service or other job classification not involved in direct patient care and clinical care services.
(5) An individual who is not one of the following:
(i) An hourly wage worker.
(ii) A nonsupervisory employee for collective bargaining purposes.
(6) A practitioner assisting residents with patient care directed by an outside health care practioner or a visiting practioner at a mental retardation facility which is not operated by the Department of Public Welfare.
§ 225.3. Health care facilities and employers.
(a) The Act governs a profit or non-profit facility which provides clinically-related health services, operated by the private sector, the Commonwealth or a political subdivision. These facilities include the following:
(1) General or special hospital.
(2) Psychiatric hospital.
(3) Rehabilitation hospital.
(4) Hospice.
(5) Ambulatory surgical facility.
(6) Long-term care nursing facility.
(7) Cancer treatment center using radiation therapy on an ambulatory basis.
(8) Inpatient drug and alcohol treatment facility.
(9) A facility which provides clinically-related health services and which is operated by the Department of Corrections, the Department of Health, the Department of Military and Veterans Affairs or the Department of Public Welfare.
(10) A mental retardation facility operated by the Department of Public Welfare.
(11) A facility which provides mental retardation services that is not operated by the Department of Public Welfare if it is an intermediate care facility for the mentally retarded (ICF/MR) under 55 Pa. Code § 6210.3 (relating to definitions) or it otherwise provides direct patient care or clinical care.
(12) An outpatient clinic operated by a health care facility or employer.
(13) An office owned by a health care facility regardless of the office’s location.
(14) Long-term acute care hospitals.
(b) The following are not a health care facility or employer governed under the Act:
(1) An office used primarily for private or group practice by a health care practitioner.
(2) A facility providing treatment solely on the basis of prayer or spiritual means in accordance with the tenets of a church or a religious denomination.
(3) A facility conducted by a religious organization for the purpose of providing health care services exclusively to clergy or other individuals in a religious profession who are members of the religious denomination conducting the facility.
§ 225.4. Changes to scheduled daily work shift.
(a) A health care facility or employer may not require an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift.
(b) A health care facility or employer shall convey a change in the daily work schedule to the employee at least 1 week before the daily schedule change unless there is an unforeseeable emergent circumstance unless otherwise stipulated in a collective bargaining agreement. An employee may voluntarily agree to a schedule change or to work overtime without this notice.
(c) The hours contained in the employment contract for a per diem employee or other individual employed through a personnel agency that contracts with a health care facility to provide personnel, shall constitute regularly- scheduled work hours.
(d) A health care facility is not required to give advanced notice to an employee from a personnel agency that contracts with a health care facility to provide personnel as part of the facility’s reasonable efforts under section 3(c)(2)(ii) of the Act (43 P.S. § 932.3(c)(2)(ii)). A health care facility or employer may not mandate overtime for these employees unless it complies with section 3 of the Act (43 P.S. § 932.3) and these regulations.
§ 225.5. On-call time.
(a) A health care facility or employer may utilize on-call time if it complies with section 3(c) of the Act (43 P.S. § 932.3(c)) and this section.
(b) A health facility or employer may utilize on-call time when it is required for patient care services where the volume and frequency of care require employees to be available to meet the need for unexpected services and treatment.
(c) A health care facility may not utilize on-call time for any of the following:
(1) To substitute for mandatory overtime. A health care facility or employer may mandate overtime for an employee who is also an on-call employee if the mandatory overtime is allowed and complies with the Act and this chapter.
(2) To circumvent the Act or these regulations.
(3) To fill a staffing vacancy.
(4) To fill an unfilled shift in a schedule that is not caused by unexpected absences discovered at or before the commencement of the shift which could not be prudently planned for by an employer.
(5) To fill a vacancy resulting from chronic short staffing.
(d) A health care facility or employer may ask for volunteers to work overtime from an on-call list, if it does not mandate an employee to work overtime in violation of the Act or this chapter.
(e) Hours when an on-call employee is not called into work will not be considered hours worked requiring off-duty time under section 3(d) of the Act (43 P.S. § 932.3(d)).
§ 225.6. Unforeseeable emergent circumstances.
(a) Under section 3(a)(1), (c) of the Act (43 P.S. § 932.3(a)(1), (c)), a health care facility or employer may require an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift if there is an unforeseeable emergent circumstance.
(b) The following do not constitute an unforeseeable emergent circumstance:
(1) Vacancies that arise from chronic short staffing.
(2) Known or anticipated absences.
(3)Absences that may have been prudently planned for based upon operational experience and that:
(i) Do not affect patient safety or;
(ii) Do not violate federal or Pennsylvania law governing staff requirements for patients or clients.
(3) An unfilled shift in a schedule that is not caused by unexpected absences discovered at or before the commencement of the shift which could not be prudently planned for by an employer.
(5) An event that may be reasonably predicted that is not unusual or extraordinary and:
(i)Does not substantially affect needed health care services, or
(ii) Increases the need for health care services; or
(iii) Would not violate federal or Pennsylvania law governing staff requirements for patients or clients.
(c) A health care facility or employer shall assign additional hours as a last resort and shall first exhaust reasonable efforts before it may mandate overtime in an unforeseeable emergent circumstance. Reasonable efforts include all of the following:
(1)Seeking persons who volunteer to work extra time from all available qualified staff, whether paid a regular or premium rate of pay, who are working at the time of the unforeseeable emergent circumstance.
(2) Contacting all qualified employees who have made themselves available to work extra time at the regular or premium pay rate.
(3) Seeking the use of per diem staff.
(4) Seeking personnel from a contracted temporary agency when use of this staff is permitted by law or regulation.
§ 225.7. Time to arrange for the care of the employee's minor children, or elderly or disabled family member.
(a) Under section 3(c)(2)(iii) of the Act (43 P.S. § 932.3(c)(2)(iii)), a health care facility or employer shall provide the employee with necessary time, up to a maximum of 1 hour, which may be taken to arrange for the care of the employee’s minor child or elderly or disabled family member.
(b) The 1-hour period may begin at any agreed-upon time by the employee and the health care facility or employer after the heath care facility or employer provides notice of the mandatory overtime.
(c) The employer or health care facility shall provide the 1-hour period before the time that the overtime begins. If the health care facility or employer does not provide the 1-hour period to the employee to arrange for care before the beginning of the overtime, the employee may refuse overtime.
(d) The employee waives this period if the employee submits a written waiver to the employer and the employer previously provided written notification to the empoloyee of the right to use this time period.
(e) Payment for this period is governed by the applicable state or federal wage laws and any collective bargaining agreement. Non-payment for this period is not a violation of the Act.
§ 225.8. Patient care procedure already in progress.
(a) A health care facility or an employer may mandate overtime so an employee may complete a patient care procedure already in progress under section 3(c)(3) of the Act (43 P.S. § 932.3(c)(3)). Mandation is permissible for any of the following only if the employee’s absence could have an adverse effect on the patient:
(1) Ongoing medical, health, surgical or therapeutic procedures in which the employee is actively engaged.
(2) A procedure where anesthesia or sedation is being or was administered to the patient in which the employee is actively engaged.
(3) Transportation by vehicle, in which the employee is actively engaged, of the patient to and from the procedure.
(4) Completion of non-billing information related to the procedure in which the employee is actively engaged.
(b) When another employee can complete an on-going patient care procedure without adverse effect on the patient, the health care facility or employer shall replace the employee working mandatory overtime under this section.
(c) For an elective procedure, a health care facility or employer may not mandate overtime under this section if the expected and normal length of time to complete the procedure exceeds the end of the employee’s scheduled shift unless the health care facility or employer can demonstrate that the employee’s absence could have an adverse effect on the patient or complications arise during the procedure.
(d) If a health care facility or employer knows or reasonably should know that a patient care procedure will require mandatory overtime for the procedure, the health care facility or employer must utilize reasonable steps to obtain volunteers to perform the procedure before mandating this overtime.
(e) A health care facility or employer shall prudently schedule a patient care procedure and take prudent steps to avoid delay so that mandatory overtime under section 3(c)(3) of the Act (43 P.S. § 932.3(c)(3)) and this section does not have to be utilized for an ongoing patient procedure.
§ 225.9. Off-duty time.
(a) An employee who is required to work more than 12 consecutive hours per workday under section 3(c) of the Act (43 P.S. § 932.3(c)) or § 225.6 (relating to unforeseeable emergent circumstances) or who volunteers to work more than 12 consecutive hours may have at least 10 consecutive hours of off-duty time immediately after the worked overtime.
(b) An employee may voluntarily waive this off-duty time by notifying the health care facility or employer in writing of their intention to work their next agreed to, predetermined and regularly scheduled daily work shift.
§ 225.10. Collective bargaining agreement.
(a) The Act does not prevent a health care facility or an employer from providing an employee more protection from mandatory overtime than the minimum established under the Act and this chapter.
(b) Compliance with the minimum protections established under the Act and this chapter is required notwithstanding the existence of a collective bargaining agreement or a health care facility’s or employer’s overtime policies.
§ 225.11. Exclusions.
(a) An employee may voluntarily accept work in excess of the employee’s agreed to, predetermined and regularly scheduled work shift. A health care facility or employer may not engage in retaliation against an employee who refuses to accept this work under section 3(b) of the Act (43 P.S. § 932.3(b)).
(b) The Act and this chapter do not prevent an employer or health care facility from providing an incentive to an employee who voluntarily accepts works in excess of the employee’s agreed to, predetermined and regularly scheduled work shift if the incentive does not violate a collective bargaining agreement.
(c) An employee may work a schedule consisting of more than an 8-hour shift or a 40-hour week if this schedule is agreed to, predetermined and regularly scheduled.
§ 225.12. Violations.
(a) Any employee or group of employees of a health care facility, or any labor organization representing employees of a health care facility or employer, may file a written complaint of alleged violations of the Act or this chapter with the Bureau.
(b) The Bureau will prepare complaint forms that will be available at the Bureau or on the Department’s website (
www.dli.state.pa.us) or its successor. The Bureau will accept complaints that are not placed on the complaint form.
(c) Upon receipt of a complaint or upon its own initiative, the Bureau will investigate alleged violations of the Act and this chapter.
(d) Any of the following constitutes a violation of the Act:
(1) Requiring an employee to work in excess of an agreed to, predetermined and regularly scheduled daily work shift in violation of section 3(a)(1) of the Act (43 P.S. § 932.3(a)(1)) and this chapter unless the Act and this chapter allow this excess time.
(2) Retaliation against an employee for not accepting work in excess of the agreed to, predetermined and regularly scheduled daily work shift unless mandatory overtime is allowed under section 3 of the Act (43 P.S. § 932.3) and §§ 225.5, 225.6, 225.8 (relating to on-call time, unforeseeable emergent circumstances and patient care procedure already in progress).
(3) Retaliation against an employee for filing a complaint under the Act, providing information to the Bureau during its investigation under the Act or testifying in any proceeding under section 6 of the Act (43 P.S. § 932.6) and §§ 225.12 and 225.13 (relating to violations and hearing/appeals).
(4) Failure to provide an employee with off-duty time under section 3(d) of the Act (43 P.S. § 932.3(d)) and § 225.9 (relating to off-duty time) unless the employee voluntarily waives the off-duty time.
(5) Retaliating against an employee for taking off-duty time under section 3(d) of the Act (43 P.S. § 932.3(d)) and § 225.9 (relating to off-duty time).
(6) Failure to provide an employee up to 1 hour to arrange for the care of the employee’s minor child or elderly or disabled family member in violation of section 3(c)(iii) of the Act (43 P.S. § 932.3(c)(iii)) and § 225.7 (relating to time to arrange for the care of the employee's minor children, or elderly or disabled family member).
(7) Failure to comply with the requirements of § 225.4 (relating to changes to scheduled daily work shift).
(e) The Department may impose all of the following penalties under section 6 of the Act (43 P.S. § 932.6):
(1) A fine of $100 to 1,000 per violation. A violation is comprised of each discrete time that a health care or employer mandates overtime for an employee or does not comply with the Act and this chapter.
(2) Order a health care facility or employer to take an action which the Department deems necessary to correct a violation of section 3 of the Act (43 P.S. § 932.3) or this chapter.
§ 225.13. Hearings/appeals.
(a) Actions under sections 6 of the act (43 P. S. § 932.6) and § 225.12 (relating to violations) will be taken subject to the right of notice, hearing and adjudication under 2 Pa.C.S. Ch.5 Subch A (relating to practice and procedure of Commonwealth agencies), Ch. 7 Subch. A (relating to judicial review of Commonwealth agency action), and 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure) and this section.
(b) The Bureau will serve the health care facility or employer with an order to show cause under 1 Pa. Code § 35.14 (relating to orders to show cause). The order to show cause will contain notification that the Department may impose the penalties enumerated in section 6 of the Act (35 P.S. § 932.6) and § 225.12 (relating to violations), the grounds for the action and the Department address where pleadings may be filed. The order to show cause will contain notification that the health care facility or employer is to respond in writing within 30 days after the date of the service of the order or in accordance with another date designated by the Bureau. Failure to respond will be deemed a default and relevant facts stated in the order to show cause may be deemed admitted under 1 Pa. Code § 35.37 (relating to answers to orders to show cause).
(c) The health care facility or employer may respond in writing to the allegations of the order to show cause under 1 Pa. Code § 35.37. If made, the answer shall be filed with the Department within 30 days after the date of the order to show cause or within another time period specified by the Bureau.
(d) The Department will provide the opportunity for a recorded hearing on the order to show cause. The Secretary will designate a presiding officer to conduct the hearing under 1 Pa. Code §§ 35.185—35.190 (relating to presiding officers).
(e) An eligible party may intervene in a hearing under all of the following conditions:
(1) It can demonstrate any of the following:
(i) A right conferred by statute.
(ii) An interest which may be directly affected that it may be bound by the Department’s action and that its interest is not adequately represented by existing parties in the hearing.
(2) The party files a petition to intervene with the presiding officer and the existing parties in the hearing under 1 Pa. Code § 35.29 (relating to form and contents of petition to intervene) no later than 30 days before the scheduled hearing unless the party shows good cause and there is no prejudice to the existing parties from the late filing. Existing parties may file an answer under 1 Pa. Code § 35.36 (relating to answers to petitions to intervene) within 20 days or other time set by the presiding officer.
(3) As soon as possible after the time set filing of answers, the presiding officer will rule on the petition, may grant or deny intervention in whole or in part, and may limit the intervenor’s participation in the hearing. A presiding officer may tentatively grant intervention before the hearing only to avoid detriment to the public interest and if the presiding officer issues a final ruling on intervention before the hearing commences.
(4) A presiding officer may not grant a petition to intervene during a hearing unless good cause is shown for the late filing, all parties have the opportunity to respond or object, and the petition complies with this section.
(5) The Commonwealth may intervene as a matter of right under this section.
(f) The presiding officer will prepare and issue a proposed report and order under 1 Pa. Code §§ 35.201—35.207 (relating to proposed reports generally). The presiding officer will serve the proposed report upon counsel of record or to the parties in the hearing. The proposed report will contain the Department address where an appeal may be filed.
(g) A party may appeal the proposed report and order to the Secretary within 30 days of service of the proposed report. Appeals are governed by the following:
(1) A party desiring to appeal to the Secretary shall file exceptions to the proposed report and order within 30 days of service in accordance with 1 Pa. Code § 35.211 (relating to procedure to except to proposed report). The party may seek the reopening of the record to present testimony or evidence by filing a request with the exceptions.
(2) A party may file a written response to the exceptions within 20 days of service of the exceptions. The party may seek the reopening of the record to present testimony or evidence by filing a request with the response.
(3) If a timely appeal is filed, the presiding officer will transmit the proposed report and order and the certified record to the Secretary.
(4) If a timely appeal is filed, the Secretary will issue the final order under 1 Pa. Code § 35.226 (relating to final orders). The Secretary may reopen the record and order additional briefs.
(5) The presiding officer’s proposed report and order will be the Department’s final order under section 6 of the act (43 P. S. § 932.6) if a timely appeal is not made under this section.
(h) This section supplements 1 Pa. Code §§ 35.14, 35.27-35.31, 35.36, 35.37, 35.185—35.190, 35.201—35.207, 35.211 and 35.226.
§ 225.14. Workplace posters.
The Bureau will prepare a printed summary of the Act and this chapter and information on filing complaints for posting by a health care facility or employer in a conspicuous place where employees normally pass and can read it. The Bureau will provide copies of the summary without charge and post this summary on the Department website. (
www.dli.state.pa.us ).
