ACT 102 Prohibition of Excessive Overtime in Health Care Act

A health care facility, defined under section 2 of Act 102, is governed by the Act 102’s provisions. These facilities provide clinically related health services, regardless of whether the operation is for profit or nonprofit and regardless of whether operation is by the private sector or by State or local government. These facilities include:

1. A general or special hospital, a psychiatric hospital, a rehabilitation hospital, a hospice, an ambulatory surgical facility, a long-term care nursing facility, a cancer treatment center using radiation therapy on an ambulatory basis and an inpatient drug and alcohol treatment facility.

    

2. 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.

    

3. A mental retardation facility operated by the Department of Public Welfare.

The following do not constitute health care facilities governed under Act 102:

1. An office used primarily for the 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.

The Bureau will enforce this act for an employee as the word is defined in section 2 of Act 102. An employee includes all of the following:

1. An individual employed by a health care facility, the Commonwealth of Pennsylvania or one of its instrumentalities, or a political subdivision (such as a county, municipality, school district, local government).

    

2. Who is involved in direct patient care activities or clinical care services.

    

3. Who receives an hourly wage or is classified as a nonsupervisory employee for collective bargaining purposes.

An employee also includes an individual employed through a personnel agency that contracts with a health care facility to provide personnel.

An individual is involved in clinical care services if the individual is involved in diagnostic imaging, treatment or rehabilitative services provided in a health care facility including the following: radiology, and diagnostic imaging, such as magnetic resonance imaging and postitron emission tomography; radiation therapy; and, laboratory medical services.

If these workers otherwise meet the definition of employee in section 2 and are employed by a health care facility under section 2 (such as a general or special hospital, psychiatric hospital, rehabilitation hospital, ambulatory surgical facility; long-term care nursing facility, cancer treatment center using radiation therapy on an ambulatory basis or an inpatient drug and alcohol treatment facility) under Act 102, these employees fall within Act 102 coverage. Home health care workers employed by an entity that does not meet the definition of health care facility under section 2 are not governed by Act 102.

Act 102 has some exclusions:

1. Does not apply to facilities and employees which do not fall within the definitions of Health care facility and Employee contained in section 2 of Act 102.

    

2. Does not prevent an employee from working more than an 8-hour shift if this shift is agreed to and regularly scheduled.

    

3. Does not prohibit overtime for on-call time allowed under Act 102, if certain unforeseeable emergent circumstances occur or if an employee must complete a patient care procedure already in progress at the end of regularly-scheduled shift and the employee’s absence could have an adverse effect on the patient.

    

4. Does not prevent an employer from providing employees more protection from mandatory overtime than the minimum established under this act.

    

5. Employees may also agree to work any overtime. However, an employer may not retaliate against an employee who refuses to work overtime unless there is an unforeseeable emergent circumstance or overtime is needed to complete an on-going patient care procedure already in progress and the employee’s absence could have an adverse effect on the patient.

Whether overtime is allowed under this law is determined under its expressed provisions. Overtime occurs, under Act 102, when the time exceeds the agreed to, predetermined and regularly scheduled work shifts. An employee covered by this law is determined by the definitions in Act 102. Pennsylvania’s Minimum Wage Act and the federal Fair Labor Standards Act, on the other hand, govern the payment of overtime wages. The Minimum Wage Act and FLSA do not govern whether a health care facility or employer violated Act 102 or improperly mandated overtime under Act 102.

A physician, physician assistant and dentist do not fall within Act 102’s coverage. Act 102 also does not cover workers involved in environmental services, clerical, maintenance, food service or other job classification not involved in direct patient care and clinical care services. Individuals must also work for a health care facility and meet the Act’s definition of an employee as discussed in the FAQ, above.

The Bureau is still considering this matter. However, the Bureau will review the actual duties and work of the employee in a particular situation. However, an employee is also an individual governed by Act 102 if the individual is engaged in Clinical care services which is defined in section 2 as explained, above.

Because Act 102 did not specifically exclude nurse practitioners and nurse anesthetists, it appears that these practitioners are not excluded from coverage. However, these practitioners would have to be employed by a health care facility to trigger the Act. To fall within Act 102, a nurse practitioner and nurse anesthetist would have to meet Act 102’s definition of employee.

 Act 102 allows mandatory overtime for an unforeseeable emergent circumstance which is any of the following:

1. An unforeseeable declared national, state or municipal emergency.

    

2. A highly unusual or extraordinary event which is unpredictable or unavoidable and which substantially affects the provision of needed health care services or increases the need for health care services. These events include: an act of terrorism; a natural disaster; and, a widespread disease outbreak.

    

3. Unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer, and which could significantly affect patient safety. Except as provided in this definition, no time period is set for when the call in must occur and the Bureau will review each case individually.

Vacancies arising from chronic short staffing are not an unforeseeable emergent circumstance.

Under these circumstances, assignment of additional hours must be utilized as a last resort, the health care facility or employer has to exhaust reasonable efforts to obtain other staffing; and, the health care facility or employer must provide the employee up to 1 hour to arrange for the care of the employee’s minor child or elderly or disabled family member. Act 102 states that a health care facility engages in "reasonable efforts" when it:

1. Seeks persons who volunteer to work extra time from all available qualified staff who are working at the time of the unforeseeable emergent circumstance;

    

2. Contacts all qualified employees who have made themselves available to work extra time;

    

3. Seeks the use of per diem staff; or 

    

4. Seeks personnel from a contracted temporary agency when use of this staff is permitted by law or regulation.

However, the health care facility should utilize other reasonable efforts, which may not be listed, before overtime may be mandated.

Act 102 allows mandatory overtime for absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by the employer and which could significantly affect patient safety. As noted in a previous FAQ, there is no specific time period for the call-in to occur.

Mandatory overtime, in these situations, should be utilized as a last resort and the employer should provide the employee up to 1 hour to arrange for the care of the employee’s minor child or disabled family member. An employer should also utilize reasonable efforts to fill the vacancy as described in a previous FAQ. Factors on whether a last minute call in constitutes grounds for allowing mandatory overtime include whether the employer could have prudently planned for the unexpected absence, whether there is a pattern of absences at certain times, whether the absence impacts patient safety and the employer’s efforts and policies concerning unexpected absences, among other things. Vacancies arising from chronic short staffing is not an unforeseeable emergent circumstance.

A posted hole in the schedule is an absence that may be prudently planned for. Therefore, it is not an unforeseeable emergent circumstance or considered an unexpected absence. Therefore, mandatory overtime may not be used where this is the reason for the overtime.

Section 3(c)(1) of Act 102 permits the use of on-call time if the health care facility or employer does not use this time as a substitute for mandatory overtime or as a means of circumventing Act 102’s intent. Section 2 of the Act defines on call time as:

Time spent by an employee who is not currently working on the premises of the place of employment but who:

1. is compensated for availability; or

    

2. 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.

The Bureau will have to address the particular facts of each use of on call time. The Bureau may review the intent underlying the use of on call time, how it is used and the facility’s needs and past practices, among other things.

Under section 3 of Act 102, an employee may voluntarily accept to work overtime. Act 102 prohibits retaliation if an employee does not voluntarily accept overtime. Act 102 does not prohibit the use of incentives.

Retaliation occurs when an employee refuses to accept mandatory overtime prohibited under Act 102 and the health care facility subjects the employee to discrimination, dismissal, discharge or any other employment decision adverse to the employee because of this refusal.

An employee who is required to work more than 12 consecutive hours per workday where mandatory overtime is allowed under section 3(c) of Act 102 or who volunteers to work more than 12 consecutive hours shall be entitled to at least 10 consecutive hours of off-duty time immediately after the worked overtime. An employee may voluntarily waive this off-duty time.

A health care facility may be subject to an administrative fine of $100 to $1,000 for each violation. Labor & Industry may also order a health care facility to take an action that is necessary to correct violations. A health care facility has the right to an administrative hearing to contest allegations at which the Bureau has to prove the alleged violations. A health care facility may appeal the Department’s penalties and orders to Commonwealth Court. The Bureau and the health care facility may also agree to settle violations and agree to a penalty.

The following are suggested procedures:

1. Become familiar with Act 102 and the employees that are covered.

    

2. Fill vacancies or try to eliminate chronic staffing shortages.

    

3. Meet with employees to enter agreed-upon predetermined and regularly-scheduled work shifts.

    

4. Consider and implement bona fide on-call staff and procedures. However, on-call may not be utilized to circumvent Act 102’s intent or as a substitute for mandatory overtime.

    

5. Review "reasonable efforts" to assure that these efforts are allowed by law or regulation and which provide staffing that is qualified to deal with patient needs.

    

6. Consider voluntary, in-house grievance procedures.

    

7. Update, enforce and implement:

    

   • Overtime policies: mandatory and voluntary.
   • Procedures for providing 10 hours of off-duty time after overtime.
   • Arranging 1 hour for the care of the employee’s minor child or elderly or disabled family member when unforeseeable emergent circumstances occur.

    

8. Educate employees and supervisors on Act 102.

    

9. Document and distribute policies pertaining to the use of overtime, call off policies, unforeseeable emergent circumstances and on call time.

    

10. Document when overtime occurs, the circumstances surrounding the use of overtime (e.g, ongoing care, unforeseeable emergent circumstance) and whether the overtime was voluntary or mandatory

 The Bureau of Labor Law Compliance will conduct investigations. Complaint forms and information about Act 102 are available on the Labor & Industry website. The Bureau must conduct an investigation and obtain sufficient evidence before allegations are prosecuted. Information and forms are also available at any of the Bureau’s regional offices:

Altoona Regional Office:
1130 Twelfth Avenue, Suite 200
Altoona, PA 16601-3486
Telephone: 1-877-792-3486 or 814-940-6225

Harrisburg Regional Office:
1301 L&I Building
651 Boas Street
Harrisburg, PA 17120-0019
Telephone: 717-787-4671 or 1-800-932-0665

Philadelphia Regional Office:
110 North 8th Street, Suite 203
Philadelphia, PA 19130-4064
Telephone: 215-560-1858

Pittsburgh Regional Office:
301 5th Avenue
Room 3300
Pittsburgh, PA 15222
Telephone: 1-877-504-8354 or 412-565-5300

Scranton Regional Office:
201-B State Office Building
100 Lackawanna Avenue
Scranton, PA 18503-1923
Telephone: 570-963-4577 or 1-877-214-3962

Nothing in Act 102 prevents an employer or health care facility from providing employees more protection from mandatory overtime than the minimum established under Act 102. However, compliance with the minimum protections established by Act 102 is required notwithstanding the existence of a collective bargaining agreement or employer policy on mandatory overtime.

Act 102 does not govern a mental retardation facility which is not operated by the Department of Public Welfare if the facility is not providing clinically related health services. The facility does not fall within Act 102 coverage if there is a nurse assisting residents with patient care directed by an outside health care practitioner or if there is a visiting health care practitioner.