Mandatory Overtime and Its Impact on Nurses and CNAs
Mandatory overtime, also known as forced overtime, happens when employees, including nurses and CNAs, are forced to work more hours than they had contracted to work upon hire (which is usually 40 hours per week).
Forced overtime is imposed. Nurses, CNAs, and other employees cannot opt out of mandatory overtime—hence its name. While some nurses and CNAs likely welcome these additional hours and the overtime pay that comes with it, others nurses and CNAs do not—they are often faced with the choice to work the overtime hours or lose their jobs. And, yes, this is still legal, though some states have established restrictions.
Under federal law, employers may require their employees to work overtime. Furthermore, federal law places no restrictions on the number of overtime hours that an employer can require. Some states have, but most have not.
The Fair Labor Standards Act (FLSA) does compel employers who require such overtime work pay the affected employee(s) time and a half for non-exempt positions. This equates to an employee’s regular wages plus an additional 50 percent of that amount.
FLSA’s additional pay requirement, however, may not apply to you, because federal law allows for exemptions. Exempt professions and professionals include, but are not limited to:
- Public officials
- Forest protection
- Fire prevention
- Farm/ranch employees
- Executive, administrative, and professional salaried employees
- Seasonal employees at agricultural fairs (such as state fair employees)
- Newspaper vendors/carriers
- Occasional labor for private residences (for example, babysitters)
- Anyone who must sleep at their place of employment
- Youth camps that offer child care
- Volunteers for for-profit/not-for-profit organizations
As is obvious, employees need to learn whether they are exempt or non-exempt concerning overtime pay.
Whether surprising, unsettling, or both, often no mandatory maximums exist for the number of overtime hours that an employer can require. For nurses and CNAs, Congress has introduced but not yet passed into law some federal restrictions.
And, yes, your employer can fire you if you refuse to work mandatory overtime. Some states have established laws that place parameters around this power that employers can wield. Currently, 18 states have enacted legislation or regulations prohibiting or restricting mandatory overtime for a nurse, which leaves 32 that have not. Even when they are established, the restrictions have been minimal. For example:
- Minnesota law disallows any retaliatory action against a nurse who refuses mandatory overtime—presumably; nurses cannot lose their positions for working overtime. But even in the event that the nurse is not fired, the environment for those who refuse overtime may become hostile and promotion opportunities could feel limited—which have damaging effects of their own. Nonetheless, this law is better than no law.
- New Jersey law places limits on the amount of overtime work that a healthcare facility can require of nurses and CNAs.
- Texas law does not prohibit mandatory overtime, but it does require hospitals to develop policy and procedures for mandatory overtime. In this way, at least nurses and CNAs have an understanding of the overtime that their employers may require of them in the future, without feeling thrust into it deprived of warning and preparation—as can often happen with forced overtime in other states.
Despite the overwhelming legality of mandatory overtime, there are still more things that you should know.
What Is Overtime? How Does Your Employment Contract Define the Term?
The term overtime is often a subject of debate. Often, employers will equivocate and unsteady the term, which allows them to demand more hours of their nurses, CNAs, and other employees while paying less overtime pay and without the fear of losing successful lawsuits.
According to an insightful article written by Cathleen Wheatley, the chief nurse executive and vice president of clinical operations at Wake Forest Baptist Health, the term overtime
…was poorly defined and indiscriminately used. Definitions included mandatory, voluntary, coerced, and extended work hours; working an off day; having on-call hours; having unpaid versus paid overtime; and varied quantifications of hours per week and hours per extended shift.
Be sure to understand, early on, how your employment contract—if you have one—defines overtime. If it does not define this term, ask the appropriate people—such as union representatives or human resources personnel—for more information regarding overtime definitions and requirements.
Why Are Nurses and CNA’s Forced to Work Overtime?
Even before the pandemic that has pushed health care facilities to capacity and beyond, there was a shortage of healthcare workers. Since COVID first made its appearance in the U.S. in early 2020, the problem has only increased. Understaffing is one of the main reasons why nurses and CNAs are forced to work overtime. If health care facilities do not have enough credentialed staff available, workers are forced to take on more hours in addition to more responsibilities.
In addition to issues created by the pandemic, common causes of understaffing include:
- High staff turnover. Studies indicate that one out of every six RN’s leave their first nursing job within a year, and around a third leave within the first two years.
- An aging population. As the Baby Boomer generation grows older, their need for medical care increases. The number of individuals entering the health care fields has not matched the increased need for services.
- A shortage of instructors and clinical sites to train additional health care workers.
Should the Law Limit Overtime for Nurses and Other Healthcare Workers?
Mandatory overtime may expose healthcare workers and patients to a variety of dangers created by physical and mental fatigue, but it remains an aspect of the profession for about 67 percent of nurses.
Hospitals and clinics often scramble to meet staffing requirements. To remain compliant with those regulations, they rely on nurses (RNs) and nursing assistants (CNAs) to work overtime.
The prevalence of mandatory overtime has prompted organizations like the American Nurses Association (ANA) and American Association of Critical-Care Nurses (AACN) to advocate on behalf of nurses.
Hospital workers suffer overexertion injuries at twice the average for U.S. workers, and excessive work hours are partially responsible. Patients are at risk, too, as a study published in Health Affairs found that a nurse’s error rate goes up threefold during a shift that lasts longer than 12.5 hours.
What Dangers Are Created by Mandatory Overtime in Healthcare?
The following table lists some of the ways that mandatory overtime can hurt nurses and patients:
Ways Mandatory Overtime May Hurt Nurses
Ways Mandatory Overtime for Workers May Harm Patients
With the well-documented dangers of overworked nurses, why don’t more healthcare facilities change their practices? Well, each situation is unique, but forcing overtime on experienced and trusted nurses is often more cost-effective than hiring and training new ones. Furthermore, nursing shortages and unpredictable staffing needs sometimes leave healthcare employers with few options.
Although the need for more nurses is increasing far more rapidly than the number of people entering the profession, creating widespread staffing challenges, many nursing advocates argue that hospitals and other healthcare facilities should use mandatory overtime as a short-term solution. Despite this, healthcare facilities tend to rely on mandatory overtime to redress staffing shortages way too often and for way too long.
Do You Believe Federal Law Should Restrict Mandatory Overtime?
Mandatory overtime is not an occasional thing. Hospitals and clinics across the country regularly use it. Cathleen Wheatley, as mentioned earlier in this blog, also described the sheer prevalence of nurse overtime in her scholarly article. She wrote,
Bae (2012) found 60% of U.S. nurses surveyed worked at least one type of overtime, with only 10% reporting unpaid overtime. Of nurses who reported working overtime, 54% worked less than 12 hours a week of overtime and 46% worked 12 hours or more per week. For those working less than 12 hours, 62% reported voluntary overtime, 18% mandatory, and 37% on call. For those working 12 hours or more per week of overtime, 35% reported mandatory and 72% on call. Of the total sample, approximately 17% reported working more than 40 hours per week as the norm.
What State Laws Apply?
Some states have started the ball rolling. They have begun to think and talk about successful reforms—but the problems associated with mandatory nurse overtime require nationwide action. Meanwhile, the following state requirements can provide useful entry points for those states that are considering passing overtime laws.
Restricts overtime to no longer than 12 hours in a 24-hour except in a health care emergency (2000)
Restricts overtime to no more than the regularly scheduled hours except an emergency situation (2002)
Allows refusal to work more than 12 hours, except in certain circumstances, and 10 hours off after overtime (2001)
Prohibits mandatory overtime (2002). Minnesota’s legislation lists 12 consecutive hours or less as a “normal work period” for nurses that they may not exceed absent emergency.
Prohibits mandatory work in excess of predetermined scheduled work shift, not to exceed 40 hours per week (2002)
Prohibits more than 48 hours in a week or more than 12 hours in 24 hours (2001)
Requires hospitals to develop policies and procedures for mandatory overtime (2002)
Allows overtime only on a strictly voluntary basis (2002)
Prohibits mandatory work in excess of a predetermined schedule except in a surgical procedure or public health emergency (2004)
Allows mandatory overtime only in unforeseen emergent circumstances, and eight-hour rest periods for nurses working 12-hour shifts (2005)
Prohibits mandatory overtime and provides a penalty for any violations (2004). This prevents nurses from working more than 16 hours in a 24-hour period. It also requires eight consecutive hours off after a shift of 12 hours or more before the nurse can lawfully return to work.
|California||Restricts overtime to no longer than 12 hours in a 24-hour except in a health care emergency (2000)|
|Maryland||Restricts overtime to no more than the regularly scheduled hours except an emergency situation (2002)|
|Maine||Allows refusal to work more than 12 hours, except in certain circumstances, and 10 hours off after overtime (2001)|
|Minnesota||Prohibits mandatory overtime (2002). Minnesota’s legislation lists 12 consecutive hours or less as a “normal work period” for nurses that they may not exceed absent emergency.|
|New Jersey||Prohibits mandatory work in excess of predetermined scheduled work shift, not to exceed 40 hours per week (2002)|
|Oregon||Prohibits more than 48 hours in a week or more than 12 hours in 24 hours (2001)|
|Texas||Requires hospitals to develop policies and procedures for mandatory overtime (2002)|
|Washington||Allows overtime only on a strictly voluntary basis (2002)|
|Connecticut||Prohibits mandatory work in excess of a predetermined schedule except in a surgical procedure or public health emergency (2004)|
|Illinois||Allows mandatory overtime only in unforeseen emergent circumstances, and eight-hour rest periods for nurses working 12-hour shifts (2005)|
|West Virginia||Prohibits mandatory overtime and provides a penalty for any violations (2004). This prevents nurses from working more than 16 hours in a 24-hour period. It also requires eight consecutive hours off after a shift of 12 hours or more before the nurse can lawfully return to work|
Furthermore, Pennsylvania’s Prohibition of Excessive Overtime in Health Care Act allows the employee and employer to agree to a predetermined number of hours that they generally may not exceed except in emergencies or catastrophic events. New York has a similar law.
Which State’s Approach, if Any, Do You Prefer? Where Should We Draw the Line?
That is, of course, a question best answered individually. States have the right to come up with answers tailored to the needs of their residents. But they should do something, and we look forward to a time where all states place overtime restrictions for nurses and other healthcare professionals.
How Does ADA Impact Mandatory Overtime?
The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations that align with an employee’s medical conditions, and offering a modified work schedule is considered a reasonable accommodation.
Because of this, employers must consider excusing employees with medical conditions that require a modified work schedule from working mandatory overtime. The catch, however, is that employers can still require forced overtime if they can show that the ability to work overtime is a qualification standard of the position or an essential job function.
To show that working overtime is a qualification standard or an essential job function, employers must:
- Identify positions in which employees are prone to regular or seasonal overtime.
- Determine whether the work requiring overtime is an essential function. If the overtime is voluntary, it cannot involve essential functions.
- Ensure that the company policies reflect that overtime is mandatory and that there are consequences in the company’s attendance policies for missing overtime.
- Job descriptions and job openings must state that overtime is mandatory for this position.
- Engage in discussions with disabled employees to determine if their unique limitations will all them to satisfy the functions of the position.
- If the employee can complete the essential functions of the position with the accommodation of restricting mandatory overtime, then it is considered a reasonable accommodation.
- Consider if other accommodations can be made to help the employee be able to work mandatory overtime, such as additional breaks to relieve the stress of overtime hours, shifting the time and manner in which essential functions must be performed, or—as a last resort—the consideration of moving the employee to a different position that doesn’t require overtime.
- Determine if excusing the employee from mandatory overtime would result in an undue hardship for the company. However, these hardships must be related to the performance of the company, not the cost.
Disabilities That Prevent You From Working Long Hours
Many disabling conditions can make working long hours impossible, especially for medical professionals who are moving around, handling patients, and on their feet for most of their shifts. The following are some disabilities that might disallow a nurse or CNA from working mandatory overtime hours.
Herniated discs, arthritis, and other conditions that impact the skeleton and muscles can cause serious pain and result in limited movement. Further, these disorders might flare up after a certain time on your feet or while performing your occupation’s important duties which always require exacting focus and concentration.
Mental Health Disorders
Working as a nurse or CNA already requires sharp executive function, processing and attention, especially if you work overtime and feel fatigued. Mental health disorders can result in symptoms that cloud judgment and impair decision-making abilities, as well as attention to detail. These impairments can result in mistakes that put patients at risk of serious harm or death.
While many forms of cancer are treatable and allow patients to return to work, some people have limitations during their treatment periods. Chemotherapy can cause extreme fatigue and weakness or chemo brain fog which can keep a nurse from working longer than a usual shift – or even at all.
Chronic pain can plague a nurse while they are working, and the pain can increase the longer someone works. Reflex sympathetic disorder (RSD) and fibromyalgia are two examples of conditions that might flare up after hours performing your essential duties and prevent you from safely working overtime hours.
Do Not Wait to File a Disability Claim
If your medical condition makes it difficult or impossible for you to work mandatory overtime in a medical setting, do not keep trying to work long hours despite extreme pain or other disabling disability symptoms. Your employer might end up firing you or, even worse, a patient might end up with preventable injuries or complications or death.
Instead, you should discuss your disability insurance claim with an experienced disability attorney. We can assess your situation along with your medical conditions and your individual or group disability policy and advise you of your eligibility for monthly disability benefits.
If you file a successful disability insurance claim, you can begin receiving benefits that provide financial support while you cannot perform your required occupational duties, which might include working long hours. Taking these important steps will protect you if your employer fires you because you cannot work mandatory overtime hours.
Do You Need a Disability Attorney’s Help?
If you cannot perform your occupation due to a disability, you should seek legal guidance about the claim process. An attorney can advise you whether you might qualify for disability insurance benefits or if you need to seek other options when it comes to avoiding mandatory overtime.
If you have a qualified disability, our lawyers can assist you in preparing and filing your claim, so you have the best chance of success. If you hit roadblocks, we can promptly address them and negotiate with the insurance company until you receive the benefits you deserve.
If you need assistance with a disability claim, call us.
The experienced, compassionate lawyers and ERISA attorneys at DarrasLaw—top-rated disability law firm in the country—has helped hundreds of nurses, CNAs, and other healthcare professionals collect on valid disability insurance claims. We offer free individual or group disability insurance policy analysis and free claim consultations. Call us today at (800) 458-4577 or contact us online.