New Requirements for Critical Access Hospitals, Small Hospitals, and Sole Community Hospitals

Change of Law: Hospital Action Required

To:	Rural CEOs, Rural Chief Nursing Officers Please forward to Human Resource leaders and other impacted managers
From:	Alicia B. Eyler, Policy Director, Health Access AliciaE@WSHA.org, 206-577-1821
Subject:	New Requirements for Critical Access Hospitals, Small Hospitals, and Sole Community Hospitals – Uninterrupted Meal and Rest Breaks and Hospital Staffing Policies for Nurses, Technicians, and Technologists

Purpose

The purpose of this bulletin is to inform critical access hospitals, small hospitals with fewer than 25 beds in operation, and sole community hospitals that Substitute House Bill 1155, legislation regarding staffing requirements enacted in 2019, is effective for your hospitals on July 1, 2021. The new requirements impact meal and rest break policies, use of mandatory overtime and on-call, and provision of rest between shifts for nurses and certain technicians and technologists in hospital settings.

Applicability/Scope

SHB 1155 was enacted in 2019 and most acute care hospitals had to comply with the law on January 1, 2020.  The law provided additional time for smaller facilities to plan for any necessary changes. Starting July 1, 2021, the following facilities are required to also implement the requirements:

1. Hospitals certified as critical access hospitals under 42 U.S.C. Sec. 1395i-4;
2. Hospitals with fewer than 25 acute care beds in operation; and
3. Hospitals certified by federal Centers for Medicare and Medicaid Services as sole community hospitals as of January 1, 2013, that:
   1. Have had less than 150 acute care licensed beds in fiscal year 2011;
   2. Have a level III adult trauma service designation from the Department of Health as of January 1, 2014; and
   3. Are owned and operated by the state or a political subdivision.

Recommendations

1. Review this bulletin and the final text of the legislation(and relevant RCWs, see References section below) with legal counsel, human resources executives, and nursing leadership to determine the impacts on your hospital or facility to identify changes that must be made to ensure compliance.
2. Determine your hospital’s compliance strategy and consider policies and procedures that not only comply with the new law, but also are consistent with your hospital’s goals for high-quality, patient-centered care that supports the sustainability of your workforce and organization.
3. Make particular note of the ways in which Governor Inslee’s Non-Urgent Procedures Proclamation 20.24.2intersects with these new laws and impacts your facility during the COVID-19 pandemic.

Overview

A.  New Requirement – Provide nurses, technologists, and technicians with uninterrupted meal and rest breaks.

RCW 49.12.480 (section 1 of SHB 1155) requires acute care hospitals licensed under chapter 70.41 RCW to provide uninterrupted meal and rest breaks for nurses and certain technologists and technicians.

Key Provisions:

1. Uninterrupted meal and rest breaks.  Hospitals must provide nurses and certain technologists and technicians with uninterrupted meal and rest periods, subject to certain exceptions noted below.
2. Scheduling breaks.  RCW 49.12.480(1)(a)states, “rest periods must be scheduled at any point during each work period and during which an employee is required to receive a rest period.”  The law does not specifically define “scheduled” for this purpose, allowing some flexibility in implementation.
3. When interruptions are permitted.  Due to WSHA’s advocacy, the requirement to provide uninterrupted meal and rest breaks includes specific exceptions in the law for important reasons related to patient care. RCW 49.12.480(1)(b)provides the circumstances in which breaks may be interrupted:
   1. An unforeseeable emergent circumstance, as defined in RCW 49.28.130(7), includes (1) any unforeseen declared national, state, or municipal emergency, (2) when a health care facility disaster plan is activated, or (3) any unforeseen disaster or other catastrophic event which substantially affects or increases the need for health care services.
   2. A clinical circumstance, determined by the employee, employer, or employer’s designee, that may lead to a significant adverse effect on the patient’s condition (1) without knowledge, specific skill, or ability of the employee on break, or (2) due to an unforeseen or unavoidable event related to delivery of patient care requiring immediate action that could not have been planned for by the employer.
      **NOTE –Governor Inslee’s Non-Urgent Procedures Proclamation 20.24.2(effective December 3, 2020), includes waivers of exceptions to mandatory overtime and break requirements in existing law. With respect to meal and rest periods, the exception for interruptions related to “unforeseeable emergency circumstance” has been eliminated – meaning the COVID-19 pandemic is no longer an unforeseeable emergency circumstance.  However, remember if a patient emergency arises that requires staff attention, including one that requires a staff member to miss a break, the service, procedure, or surgery is no longer considered non-urgent and the exemptions may be applied.  

4. Additional break required in certain instances of missed breaks.  If the employer or employer’s designee interrupts a rest break before 10 complete minutes for a clinical circumstance that may lead to a significant adverse effect on the patient’s condition, the employee must receive an additional 10-minute uninterrupted break.  This requirement for an additional break is not applicable when a break is interrupted for an unforeseeable emergent circumstance.  The additional break must be provided “at the earliest reasonable time during the work period during which the employee is required to receive a rest period.” RCW 49.12.480(1)(c).
   1. By providing this additional uninterrupted break, the break will not be considered missed and will satisfy the requirements of the Minimum Wage Act as defined by chapter 49.46 RCW.
5. Recording missed breaks.  Hospitals are required to provide a mechanism to record missed breaks for employees, and employers are required to maintain these records.  The law does not specify a specific timeframe for maintaining these records, leaving hospitals flexibility to determine internal policies to align with other records retention policies

Key Definitions:

• “Employer” for the purposes of meal and rest breaks is defined in RCW 49.12.480(2)(b)as:
  • Hospitals licensed under chapter 70.41 RCW,
  • Hospitals certified as critical access hospitals under 42 U.S.C. Sec. 1395i-4,
  • Hospitals with fewer than 25 acute care beds in operation, and
  • Hospitals certified by federal Centers for Medicare and Medicaid Services as sole community hospitals as of January 1, 2013, that:
    • Have had less than 150 acute care licensed beds in fiscal year 2011,
    • Have a level III adult trauma service designation from the Department of Health as of January 1, 2014, and
    • Are owned and operated by the state or a political subdivision.
• “Employee” is defined under RCW 49.12.480(3)(a)and applies to any employee who meets the following four criteria:
  • Is employed by a health care facility;
  • Is involved in direct patient care activities or clinical services;
  • Receives an hourly wage or is covered by a collective bargaining agreement; and
  • Is a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a nursing assistant-certified as defined in RCW 18.88A.020.

B. New Requirement – Provisions impacting mandatory overtime and mandatory on-call for nurses, technologists, and technicians.Sections 2 and 3 of SHB 1155 significantly amended the existing mandatory overtime law for nurses (RCW 49.28.130 and RCW 49.28.140) to make several changes:

1. Certain technologists and technicians are now subject to the mandatory overtime law.
2. Added new requirements for when mandatory prescheduled on-call can and cannot be used.
3. Hospitals must provide employees with the option of eight hours of rest between shifts in certain circumstances.

Key Provisions:

1. Extension of mandatory overtime prohibition to certain technologists and technicians. The law extends the mandatory overtime prohibition currently in place for nurses to technicians and technologists.  There is no change for the use of voluntary overtime for nurses and techs.
   In addition, the law still includes exceptions for overtime work due to “unforeseeable emergency circumstances” (declared emergencies or when a hospital’s disaster plan is activated, as defined in RCW 49.28.130); when the employer documents that they have used “reasonable efforts” to obtain staffing (defined in RCW 49.28.130); or when a patient care procedure is already in progress where the absence of the employee would have an adverse effect on the patient.
2. Clarifications to use of mandatory on-call that causes overtime.  RCW 49.28.140was amended with respect to use of prescheduled on-call as an exception to the ban on mandatory overtime.  Use of prescheduled on-call time now specifies that there are limits to when mandatory prescheduled on-call can be used when it pushes an employee in to overtime:
   1. Mandatory prescheduled on-call time may not be used in lieu of scheduling employees to work regularly scheduled shifts when a staffing plan indicates the need for a scheduled shift; and
   2. Mandatory prescheduled on-call time may not be used to address regular changes in patient census or acuity or expected increases in the number of employees not reporting for predetermined scheduled shifts.

The restrictions to use of on-call that causes overtime apply only to mandatory prescheduled on-call, and do not apply to voluntary on-call.  The language allows hospitals to continue to use on-call for unanticipated increases in patient census or unplanned-for employee absences.

3. Rest between shifts.  If nurses or certain technicians and technologists accept overtime and work for more than 12 hours (including non-overtime hours), they must be given the option for at least eight hours of consecutive rest between shifts.  This is intended to support patient care by ensuring staff get the rest they need between shifts.**NOTE –Governor Inslee’s Non-Urgent Procedures Proclamation 20.24.2(effective December 3, 2020) includes waivers of exceptions to mandatory overtime and breaks requirements in existing law.  With respect to mandatory overtime, the existing exceptions allow for overtime in a situation when a prescheduled on-call, when employers use reasonable efforts to obtain staffing, or for an unforeseeable emergent circumstance have been eliminated – meaning COVID-19 is not considered an unforeseeable emergent circumstance.  However, as stated previously, it is important to remember that if a patient emergency arises that requires staff attention, including one that requires a staff member to work overtime, the service, procedure, or surgery is no longer considered non-urgent, and the exemptions may be applied.

Key Definitions:

The mandatory overtime restrictions apply to “employees” of “health care facilities.”  These definitions are provided in RCW 49.28.130.

Next Steps

WSHA’s Safety & Quality team has been supporting implementation efforts to ensure hospitals successfully comply with this law.  WSHA’s implementation work with hospitals emphasizes evidence-based hospital staffing strategies.

As the effective date for additional facilities approaches, WSHA has been conducting informational webinars, meeting individually to answer hospital questions, and has developed various resources.  If you would like additional support with your implementation strategy, please contact Trish Anderson  at 206-216-2524 or TrishA@wsha.org.

Background

Prior to passage of SHB 1155 in 2019, Washington hospitals were required to provide meal and rest breaks to employees, but intermittent breaks were permissible when the nature of the work allowed.  Additionally, mandatory overtime has been prohibited for nurses working in hospital settings, with certain exceptions for patient care.

For more than a decade, nursing unions have proposed state legislation in Washington to require uninterrupted breaks with very few exceptions for patient care, that would limit the use of on-call and overtime for nurses and other clinical staff in hospital settings.  The assertion from unions is that this type of legislation was necessary to address nurse fatigue.

Throughout this debate, WSHA opposed the legislation, citing concern the restrictions on hospital staffing would negatively impact patient care.  WSHA also emphasized the lack of evidence that the proposed policies would address nurse fatigue. WSHA expressed concerns about the impact of the legislation given the significant shortage of nurses, technologists, and technicians, as well as other hospital clinical staff.

Through direct advocacy by WSHA members, we were able to secure several important modifications to the proposed legislation that will help mitigate its impacts. These provisions include:

• Adding exceptions to uninterrupted meal and rest breaks that allow hospitals to respond to patient care needs.
• Securing a delayed effective date for rural facilities meeting certain definitions, to ensure they have additional time to plan for any changes to staffing as it can be exceptionally difficult to recruit and retain staff in rural areas.
• Ensuring if a rest break is interrupted, an additional rest break is required only if the break is interrupted prior to ten complete minutes, rather than 15 minutes.
• Ensuring the requirement to provide an additional rest break is only applicable if the original rest break is interrupted by the employer or employer’s designee, rather than the employee, and that if an additional rest break is provided, the break shall not be counted as missed.
• Eliminating an onerous provision that would have required hospitals to document the clinical reason for a break being interrupted, which would have been extremely challenging for hospitals to implement.
• Eliminating the requirement that hospitals record when breaks are taken (rather than the requirement to record missed breaks) which would have added significant administrative burden for facilities without any benefit to patient care.
• Preserving the ability for hospitals to use mandatory on-call time in situations where it is unreasonable to predict staffing needs, due to fluctuating patient volumes or acuity, or unpredictable employee absences.
• Preserving the ability for hospitals to use voluntary on-call time.
• Preventing significant restrictions to mandatory overtime that would have led to delays in patient care and restricted access to care for many patients.

References

• Legislative text of SHB 1155(enacted 2019).
• SHB 1155 is codified as:
  • RCW 49.12.480(meal and rest breaks for health care facility employees)
  • RCW 49.28.130(hours of health care employees – definitions),
  • RCW 49.28.140(mandatory overtime prohibited), and
  • RCW 49.28.150(hours of health care facility employees – penalties).
• WSHA Bulletin on non-urgent Procedures Proclamation
• Governor Inslee’s Non-Urgent Procedures Proclamation 20.24.2, effective December 3, 2020.
• Department of Labor & Industries, Overtime for Health Care Workers: https://www.lni.wa.gov/workers-rights/wages/overtime/mandatory-nurses-overtime.
• Department of Labor & Industries, Overtime and meal and rest breaks for health care workers: https://www.lni.wa.gov/forms-publications/f700-209-000.pdf.
• This bulletin is adapted in large part from an previous WSHA bulletin, released June 3, 2019, written by Lauren McDonald, which is available here.