BILL NUMBER: AB 2155 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2014
INTRODUCED BY Assembly Member Ridley-Thomas
FEBRUARY 20, 2014
An act to add Section 19851.2 to the Government Code, relating to
state employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 2155, as amended, Ridley-Thomas. Nurses and certified nurse
assistants: overtime.
Existing law generally requires the workweek of state employees to
be 40 hours, and the workday of state employees to be 8 hours. Under
existing law, it is the policy of the state to avoid the necessity
for overtime work whenever possible.
This bill would would, commencing January
1, 2016, prohibit a nurse, defined as a registered nurse or a
licensed vocational nurse, or a certified nursing assistant (CNA),
employed by the State of California in a state facility, as defined,
from being compelled to work in excess of the regularly scheduled
workweek or work shift, except under certain circumstances, including
the occurrence of a catastrophic event in a state facility. This
bill would prohibit a state facility from discriminating, dismissing,
discharging, or making an employment decision adverse to the nurse
or CNA for his or her refusal to accept those additional
hours. hours, and would specify that a refusal to
accept those additional hours does not constitute patient abandonment
or neglect, as specified. The bill would require
management and supervisors to consider employees in a specified order
of priority in order to fulfill the additional staffing needs of a
facility. This bill would enact other related provisions.
The bill would make a statement of legislative intent with regards
to prohibiting mandatory overtime for nurses and CNAs employed by
the State of California in a state facility.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to
ensure that there is a process that management and supervisors in a
state health care facility are required to follow to avoid
prescheduled and on-the-spot mandatory overtime of any nurse or
certified nursing assistant (CNA) whose regularly scheduled work
shift is complete, and to prevent circumstances where an employee is
stopped at the gate of, for example, a Department of Corrections and
Rehabilitation and California Correctional Health Care Services
facility, and is instructed to return to work at the end of their
regularly scheduled work shift. It is the intent of the
Legislature to prohibit a state facility that employees nurses or
CNAs from using mandatory overtime as a scheduling tool, or as an
excuse for fulfilling an operational need that results from a
management failure to properly staff those state facilities.
SECTION 1. SEC. 2. Section 19851.2
is added to the Government Code, to read:
19851.2. (a) As used in this section:
(1) "Nurse" means all classifications of registered nurses
represented by State Bargaining Unit 17, or the Licensed Vocational
Nurse classifications represented by State Bargaining Unit 20.
(2) "CNA" means all Certified Nursing Assistant classifications
represented by State Bargaining Unit 20.
(3) "On call or on standby" means alternative staff who are not
currently working on the premises of the facility and who satisfy
either of the following criteria:
(A) Are compensated for his or her availability.
(B) Has agreed to be available to come to the facility on short
notice, if the need arises.
(3)
( 4) "Facility" means any mental
hospital, youth or adult correctional facility, developmental center,
veteran's home, school, or worksite facilit
y that provides clinically related health services that is
operated by the Division of Correctional Health Care Services of the
Department of Corrections and Rehabilitation, the Department of
Corrections and Rehabilitation, the State Department of State
Hospitals, the Department of Veteran Affairs, and the State
Department of Developmental Services in which a nurse or CNA
works as an employee of the state.
(5) "Management or supervisor" means any person or group of
persons acting directly or indirectly on behalf of, or in the
interest of, the facility, whose duties and responsibilities include
facilitating staffing needs.
(6) "Emergency situation" means any of the following:
(A) An unforeseeable declared national, state, or municipal
emergency.
(B) A highly unusual or extraordinary event that is unpredictable
or unavoidable and that substantially affects providing needed health
care services or increases the need for health care services, which
includes any of the following:
(i) An act of terrorism.
(ii) A natural disaster.
(iii) A widespread disease outbreak.
(iv) A warden, superintendent, or executive director-declared
emergency, or severe emergency that necessitates the assistance of an
outside agency.
(b) A facility shall not require a nurse or CNA to work in excess
of a regularly scheduled workweek or work shift. A nurse or CNA may
volunteer or agree to work hours in addition to his or her regularly
scheduled workweek or work shift but the refusal by a nurse or CNA to
accept those additional hours shall not be grounds
constitute either of the following:
(1) Grounds for discrimination,
dismissal, discharge, or any other penalty or employment decision
adverse to the nurse or CNA.
(2) Patient abandonment or neglect, except under circumstances
provided for in the Nursing Practice Act (Chapter 6 (commencing with
Section 2700) of Division 2 of the Business and Professions Code).
(c) In order to avoid the use of mandatory overtime as a
scheduling tool, management and supervisors shall consider employees
to fulfill the additional staffing needs of a facility in the
following priority order:
(1) First priority shall be given to employees who volunteer or
agree to work hours in addition to his or her regularly scheduled
workweek or work shift.
(2) Second priority shall be given to individuals who are
part-time or intermittent employees.
(3) Third priority shall be given to employees who are on call or
on standby.
(c)
( d) This section shall not apply in any of
the following situations:
(1) To a nurse or CNA participating in a surgical procedure
until that procedure is completed. in which
the nurse is actively engaged and whose continued presence through
the completion of the procedure is needed to ensure the health and
safety of the patient.
(2) If a catastrophic event occurs in a facility and both of the
following factors apply:
(A) The catastrophic event results in such a large number of
patients in need of immediate medical treatment that the facility is
incapable of providing sufficient nurses or CNAs to attend to the
patients without resorting to mandatory overtime.
(B) The catastrophic event is an unanticipated and nonrecurring
event.
(3) If an emergency situation occurs.
(d)
( e) Nothing in this section shall be
construed to affect the Nursing Practice Act (Chapter 6 (commencing
with Section 2700) of Division 2 of the Business and Professions
Code), the Vocational Nursing Practice Act (Chapter 6.5 (commencing
with Section 2840) of Division 2 of the Business and Professions
Code), or a registered nurse's duty under the standards of competent
performance.
(f) Nothing in this section shall be construed to preclude a
facility from hiring part-time or intermittent employees.
(g) Nothing in this section shall prevent a facility from
providing employees with more protections against mandatory overtime
than the minimum protections established pursuant to this section.
(i) This section shall become operative on January 1, 2016.