Posted on November 08, 2011
Pennsylvania’s “Act 102” has been in effect since July 1, 2008. The law prohibits health care facilities from requiring certain employees to work mandatory overtime shifts above and beyond their predetermined and regularly scheduled daily work shifts. Further, employers may not discipline or discriminate against covered employees for refusing overtime, nor can they use on-call time to circumvent the Act’s overtime provisions. Of course, the law contains exceptions for unforeseeable or highly unusual events, or unexpected absences for which an employer could not otherwise plan. Employees also may volunteer for additional hours.
Act 102 provided that the government would promulgate explanatory regulations within 18 months of the law’s enactment. Three years later, in late October 2011, the Bureau of Labor Standards published a draft proposed rulemaking for public comment. Until now, health care facilities have struggled to determine the law’s applicability. The regulations clarify many of the law’s provisions but also add new requirements the Act itself did not demand. The most significant explanations and additions are discussed below. The full set of proposed regulations can be found here.
Initially, health care employers should know that the proposed regulations would require all covered employers to place a summary poster, provided by the Bureau of Labor Standards, in a conspicuous place where employees normally pass and can read it. Such a requirement should come as no surprise to those following the labor industry at large and its recent focus on making employees aware of their rights. If these regulations pass, employers would be forced to post a summary of the Act in an appropriate place.
The proposed regulations also expand the definition of employees covered under the Act to specifically include home health care workers employed by a health care facility or employer. Additionally, individuals providing direct patient care or clinical care services at any intermediate care facility for the mentally retarded now fall under the Act. More broadly, the regulations provide that an individual need not work on the site of the health care facility or employer to fall under the Act’s protections. Conversely, the regulations add individuals who do not qualify as covered employees to the Act’s basic definition. Specifically, individuals who are not hourly wage workers or are nonsupervisory employees for collective bargaining purposes, or a practitioner assisting residents with patient care directed by an outside or visiting practitioner at a mental retardation facility not operated by the Department of Public Welfare, are not included as covered employees.
Act 102 outlined a definition of health care facilities and employers, but the regulations specifically expand the definition. Outpatient clinics, long-term acute care hospitals, and offices owned by a health care facility regardless of the office location would all fall under the definition if these regulations pass. Intermediate care facilities or providers of direct patient or clinical care for mental retardation services also are listed.
As mentioned previously, Act 102 prohibits employers from retaliating against employees for refusing to work overtime. The Act itself briefly defined “retaliation,” but the regulations provide a more detailed description, containing some scenarios that are specific to overtime, i.e. withholding of pay, leave or benefits; refusal to promote; scheduling less-desirable work shifts; transfer to less-desirable positions; punitive scheduling or denial of voluntary overtime; as well as intimidation, negative evaluations, or “any employment decision adverse to an employee.”
The proposed regulations also address many practical application issues associated with the Act. For example, when making changes to a regularly scheduled daily work shift, the regulations propose that employees be notified at least one week before the change. For per diem employees or employees received through an outside contract, the hours contained in the employment contract constitute regularly-scheduled work hours, and employers may not mandate overtime for these employees, either. The proposed regulations also require that employers provide up to one hour for employees to arrange for care of minor children or disabled or elderly family members in the event of mandatory unforeseen overtime.
The regulations also provide more specific detail regarding the exceptions to the Act, outlining scenarios that do not constitute unforeseeable emergent circumstances, and allowing employers to mandate overtime so an employee may complete a patient care procedure already in progress at the end of a shift. Employers may provide incentives to persuade employees to voluntarily accept excess work. Additionally, the regulations explain that an employee may voluntarily waive the Act’s mandatory off-duty time by notifying his or her employer in writing.
Importantly, the proposed regulations outline specific examples of violations of the Act and provide affected employees with a mechanism for complaints and hearings. While the Act designated punishments as a fine of $100 to $1000 per violation, the regulations explain that a violation occurs each discrete time a health care facility or employer mandates overtime for an employee or does not comply with the Act. If you would like to discuss the applicability of these proposed regulations to your business, or would like to send a comment to the Department of Labor and Industry about any of the proposed provisions, please contact any Knox Labor and Employment attorney at (814) 459-2800.
Article written by Carsen N. Ruperto.