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When Jenna Pruitt*, RN, was in the Navy, refusing an order to remain on duty after completing a shift wasn't an option. Once her tour of duty was over, she accepted a position in the ICU of a busy N.Y. metropolitan medical center. When Pruitt's supervisor demanded she stay when her 12-hour shift ended, Pruitt found she still had only one choice: continue working or face disciplinary action. Now, a new law eliminating mandatory overtime, signed by Governor Paterson on August 13, 2008, means nurses in N.Y. will no longer have to choose.

"Both [New York Organization of Nurse Executives] and I personally have long felt mandatory overtime was inappropriate and on some level unethical; we never supported those who use mandatory overtime as a staffing methodology or those who took the next step and, when people refused to stay, reported them to [the Office of Professional Discipline] for abandonment," says Pat Hogan, RN, co-chairwoman of the Public Policy Committee and past president, NYONE. Unfortunately, she says, legislation was needed to end these practices.

Starting July 1, 2009, nurses cannot be forced to stay beyond the hours they have agreed to and are normally scheduled to work. And, under the new law, refusing mandatory overtime will not, by itself, be considered patient abandonment.

Exceptions to the rule

N.Y. legislators found it necessary to add four exceptions to the new law. A nurse may be required to work overtime in the case of a healthcare disaster (such as a natural catastrophe), government-declared state of emergency, or if he or she is in the middle of an ongoing medical or surgical procedure. "[These are] all prudent measures because they are in the interest of patient safety," says Hogan. The final exception is an "emergency" situation — as determined by the employer. What may be considered an "emergency" is well-defined. It must be unanticipated and cannot occur on a regular basis. The statute specifically requires a good-faith effort first to have the shift covered by a per diem, agency nurse, or assigned float, or by requesting that an off-duty employee work an additional day, before requiring the nurse on duty to remain. "The employer needs to try to fill that [position] before resorting to mandatory overtime," says Hogan. "And very rarely in any institution is there only one person who has the skills to take care of any particular subset of patients."

This particular exception is one of the reasons the Greater New York Hospital Association did not oppose the law. "In previous years, we had not supported legislation to do away with nurse mandatory overtime because we didn't think [it] adequately allowed healthcare providers to require nurses to remain past their regularly scheduled shifts when emergency warranted it," says Brian Conway, vice president, Media Relations and Public Affairs, GNYHA.

Although its member hospitals rarely resort to mandated overtime, says Conway, the GNYHA deemed it critically important to have the ability to require nurses to stay in an emergency. He cites two examples of such emergencies he believes falls within this provision of the law: when many nurses call in sick on the same day or if severe weather keeps certain nurses from getting to work on time.

Feeling the impact

"It's certainly our hope [that] this legislation would not adversely [affect] existing nurse staffing ratios or shortage issues that we are working very hard on in other areas to address," says Conway. It stands to reason, he adds, that the biggest impact will be on those hospitals that use mandatory overtime the most.

"For those [managers] who did not use mandatory overtime, it's not an issue. Those who were using it will have to go to their CEOs and CFOs and say, 'I can no longer do this — I need to increase the staffing or I need to limit the services we can provide,'" says Hogan. She believes it may actually help nurse administrators justify and obtain a larger budget to hire desperately needed staff, which doesn't always have to mean increased costs. Where mandatory overtime was used to staff a building, Hogan says, depending on how much overtime was used, a budgeted position may actually be cheaper than overtime dollars.

To maintain adequate staffing, healthcare facilities, particularly those with high vacancy rates, will be forced to place greater emphasis on retention and recruitment. As vacancy rates go up, Hogan says, hospitals could be faced with more pressure for overtime by existing staff members. "That is why getting more nursing school faculty and more people into nursing is so important," she says. Some employers, however, may find it necessary to work on incentives, wages, or otherwise, to fill in gaps through voluntary overtime — which is not prohibited by the new statute.

Not the cure-all

Despite her overall support of the new law, Hogan sees two potential weaknesses. "One issue that [it] doesn't solve is this whole area of communication and how a manager asks [staff] whether they want to stay a couple of hours for overtime," Hogan says. In speaking with nurses around N.Y. about mandatory overtime and abandonment, she found an enormous difference between what "mandatory overtime" is and what it is perceived as on the job. When a nurse manager asked for overtime, staff perceived it as "mandatory." The nurse manager, however, intended it as a question and not a requirement. "It's all in how the sender sends the message and how the receiver accepts the message," Hogan says. "How you communicate staffing needs to people who report to you is very tricky, and I'm not sure we've fixed how people communicate to one another."

The second issue concerns voluntary overtime. One purpose of the law is to safeguard patients from nurses who are forced to work beyond their physical and mental abilities. Legislators recognized this and attempted to eliminate the potential risk to patient safety when, for example, a nurse is required to work 16 hours — but not if she voluntarily chooses to work those same hours.

"If the literature has determined that errors begin to increase and people lose their ability to think critically on or about the 12th hour of work, then why are we allowing voluntary overtime?" Hogan says. Truck drivers and pilots have limits on the consecutive hours they are permitted to work but not nurses, she points out.

Despite such concerns, the new law has been applauded as a positive step for patients and nurses. In addition to promoting patient safety, it protects nurses. Because it is part of NYS's labor laws, the new law will come under Section 213, which provides prosecution for those who violate it. "Nobody should have to fear saying no to last-minute mandatory overtime and choose between the job and getting his or her child off the bus," says Hogan. "If this is going to fix those issues, then it's a good thing and the time and effort to accomplish it well spent."

*Name has been changed

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Joan Sosin, RN, JD, is a frequent contributor to Nursing Spectrum

To comment, e-mail editorNY@nursingspectrum.com.


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