Nurse fatigue was a concern long before March 2020, but the pandemic has spurred more discussions about the effects that long hours and mandatory overtime have on patient safety and employee well-being.
When an internal memo from the University Medical Center of Southern Nevada circulated online recently, detailing the hospital’s plans to enact mandatory overtime, the pushback was immediate and intense. Under pressure from nurses and the local service employees union, Secure Employees International Union (SEIU Local 1107), the hospital opted to offer voluntary shifts instead.
On Thursday, the New York State Nurses Association held a virtual press conference supporting legislation that would strengthen the state’s mandatory overtime law, which bars hospitals from forcing registered nurses to work overtime except in limited emergency situations.
Before the pandemic, New York and 17 other states had laws concerning mandatory overtime for nurses: Alaska, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, Texas, Washington, and West Virginia.
These laws cap the hours a nurse can work in a certain timeframe and ensure they have sufficient time off between shifts. Overtime is still allowed, though voluntarily. In general, the legislation affects hospital-based nurses and extends to other workplace settings depending on the state.
Since the emergence of COVID, lawmakers in at least three additional states — Michigan, Ohio, and Hawaii — have worked toward codifying mandatory overtime protections for nurses. But for the most part, these legislative efforts were underway well before the pandemic and have “been introduced for several years in a row,” says Jason Richie, MS, the associate director of state advocacy for the American Nurses Association’s (ANA) policy and government affairs department.
Hawaii introduced its latest version of a bill that would restrict nurses’ overtime last year, citing data from 2019 that found 26% of the state’s nurses worked more than 41 hours a week — numbers that have probably “only ramped up during COVID,” says Richie.
For nearly 20 years, it has been widely known that longer nursing shifts and working more than 40 hours per week “results in inattention, a decline in vigilance, poor judgment, and lack of concentration,” according to a Patient Safety Network primer updated last year. Medication errors are three times more likely to occur when a nurse works a shift exceeding 12.5 hours on more than two consecutive days.
Aware of these pitfalls, some states with overtime provisions already in place are now aiming to strengthen those laws. For example, a bill in Washington state targeting safe staffing and the enforcement of existing break and overtime laws passed the state House in February but ultimately stalled in the Senate. However, a companion bill in the Senate remains under review.
And in Connecticut, lawmakers want to expand the definition of forced overtime and extend protections to home health nurses. The bill’s updated language requires hospitals to report mandatory overtime and the circumstances leading to its use to the Department of Public Health. The bill also specifies that “any nurse or group of nurses may file a civil action against a hospital that violates” these provisions.
Where Mandates Fall Short
Although overtime laws limit work hours, certain exemptions allow facilities to bypass the guidelines, such as an influx of patients or an emergency declaration. When COVID began, these clauses permitted employers to enforce overtime, even in some states where such practices are typically prohibited.
But the exemption wasn’t ever intended to be used for years on end. Transitioning out of the emergent phase of the pandemic has proven difficult for employers and made scheduling disparities more apparent, says Richie, because “some hospitals are great about not requiring mandatory overtime and others aren’t.”
To combat abuse of the emergency exemption clause, Oregon passed HB 3016 last year to prohibit hospitals from deviating from the nurse staffing plan for more than 90 days.
Still, to avoid forced overtime and escape short-staffing, nurses pursued lucrative travel contracts. Others left for non-bedside jobs or exited the field entirely, all avenues that further reduced staff availability and magnified the demands on the remaining workforce.
Chronically understaffed healthcare facilities have become heavily reliant on travel nurses and new graduates to fill vacancies. They have put nurses in a position where they must operate at the top of their practice while working 12- or 14-hour shifts without a dedicated break, says Gerard Brogan, RN, director of nursing practice at National Nurses United (NNU) and the California Nurses Association.
“You don’t have an easy patient in your load anymore,” he says. “Patients are acutely ill now when they’re in the hospital. Common sense tells you that nurses need to be well-rested [to be] on the ball and vigilant.”
By neglecting to make long-term staffing plans and failing to protect nurses during the COVID pandemic, hospitals are now navigating a crisis of their own manufacturing, Brogan says.
And nurses are feeling the strain. A September 2021 study by the American Association of Critical-Care Nurses surveyed 6000 acute and critical care nurses and found that 92% said the “pandemic has depleted nurses at their hospitals, and, as a result, their careers will be shorter than they intended.” Two thirds of respondents (66%) have considered leaving nursing based on their pandemic experiences alone.
In a December 2021 poll of healthcare workers in Washington state, 84% said they were “very” or somewhat” burned out, and 49% said they’re likely to leave healthcare in the next few years, with 71% citing short-staffing as a primary reason for their premature exit.
“The industry needs to wake up,” says Brogan. “The reason people are leaving or expressing a desire to leave over the next couple of years is because they do not feel supported by administration. I’ve been a nurse for 42 years, and I have never seen this level of disaffection between clinicians and administrators — just a lack of protections and regard for their health and safety.”
The Legality of Forced Overtime
Although more states adopting overtime laws is a step in the right direction, a lack of standardization among states complicates matters, says Richie. Like in Minnesota, where mandatory overtime is permitted if there are not enough replacement personnel available, or in Connecticut, if the nurse is completing a surgical procedure.
Legislation at the federal level could change that, Richie says, creating consistency in overtime regulations as it did for airline pilots and railroad conductors decades ago. To that end, he says the ANA hopes to have a bill coming before the Senate later this year, sponsored by Sen. Jeff Merkley (D) of Oregon.
Meanwhile, the NNU supports the federal safe staffing law introduced in the House and Senate last year. With bipartisan support and 80 sponsors in the House — “the most we’ve ever had” — Brogan says he feels optimistic about the bill’s passage.
Until a federal statute passes, nurses should practice due diligence in determining their rights, says Andrew Ramstad, JD, a New York City-based attorney at Romano Law, which specializes in business and employment law. Nurses working in states without forced overtime protections should review their contracts or collective bargaining agreements for their specific employment obligations, he says.
Nurses in states with a ban on mandatory overtime aren’t off the hook either. “They should understand exactly what that ban includes,” says Ramstad. “For example, in New York, Labor Law section 167 prohibits an employer from requiring a nurse to work more than that nurse’s ‘regularly scheduled work hours,’ ” which encompasses the “hours a nurse agreed to and is normally scheduled to work.” A nurse’s regular schedule may exceed 40 hours per week in some cases and, therefore, circumvents the ban.
Ultimately, federal legislation that curbs forced overtime and guarantees proper staffing can be a game-changer because “staffed properly, people will stay,” says Brogan.
Steph Weber is a Midwest-based freelance journalist specializing in healthcare and law.