Law will set new workplace standards for hospitals' administrative and nursing staff

Most Washington hospitals will soon be subject to a sweeping 30-page "Safe Staffing Bill" (Bill 5236), aimed at strengthening workplace standards. Starting January 1, 2024, covered hospitals, which is broadly defined to include any institution providing 24-hour patient care and accommodation,[1] must meet more stringent staffing requirements. Specifically, hospitals must establish a hospital-wide staffing committee with significant nursing representation, adopt an annual patient care unit and shift-based staffing plan, ensure all hourly frontline staff receive scheduled and uninterrupted meal and rest breaks, and comply with stricter overtime requirements.

The state legislature passed the Safe Staffing Bill with bipartisan support, building upon previous bills designed to bolster hospital working standards. The new bill seeks to find compromise between hospitals and unions to resolve chronic staffing shortages and improve working conditions without adopting the rigor of patient-to-nurse staffing ratios, which are difficult to administer. Governor Jay Inslee signed the bill into law in April 2023.

Hospitals operating in Washington should take steps to ensure compliance. Potential penalties for noncompliance are significant—failure to adopt or comply with the new law's expansive requirements may be subject to the revocation of a hospital's licensure, fines up to $1 million, and forced staffing and patient-nursing ratios.

Hospital Staffing Committees

By January 1, 2024, hospitals must charter a hospital-wide staffing committee comprised of administrative staff and nonmanagerial/nonsupervisory nursing staff. This may be done by either creating a new hospital staffing committee or assigning its functions to a standing nurse staffing committee, as was previously required under existing law. The staffing committee must meet the following requirements:

• Hospital administration must appoint 50% of the committee, to include the chief financial officer, the chief nursing officers, and patient care unit directors or managers;
• Either the collective bargaining representative(s) or the nursing staff itself (if unrepresented) must appoint the other 50% of the committee, who must be nonmanagerial/nonsupervisory nursing staff who currently provide direct patient care, and who must be given voting rights; and
• Committee members may only participate during scheduled work time, must be relieved of all other work duties during meetings, and must be compensated at the appropriate rate of pay during committee activities. Moreover, committee members must be provided with coverage, if needed, when they attend a meeting. They must not be subject to retaliation related to participation.

By July 1, 2024, the committee's charter must be submitted to the Washington Department of Health and posted on the hospital's public website.

Hospital Staffing Plans

Staffing Plan

By July 1, 2024, the hospital staffing committee must adopt an annual patient care unit and shift-based staffing plan for every area of the hospital where care is provided by registered nurses. Previously, the hospital’s nurse staffing committee was primarily responsible for developing this plan. The plan must reflect patient needs and consider numerous factors, including:

• The hospital's finances and resources;
• Staffing guidelines adopted by national nursing professional associations and organizations;
• Patient census, including the total number of patients on the unit each shift;
• Patient acuity level, intensity of care needs, and the type of care to be delivered on each shift;
• Specialty certification, training, and skill mix of nursing staff providing care on each shift;
• Availability of patient care staff (and other personnel) supporting nursing staff services on the unit each shift;
• The architecture and geography of the patient care unit, including by way of example, the placement of patient rooms, treatment areas, nursing stations, medication preparation areas, and equipment; and
• Need for specialized or intensive equipment.

The staffing plan must be submitted to the Washington Department of Health (and thereafter on an annual basis) and also posted on both the hospital’s website and in a public area at each patient care unit (along with the staffing schedule on the unit).

Compliance

From July 1, 2025, hospitals must ensure the staffing plan is fully implemented and adopt and follow written policies and procedures to document when staffing assignments are out of compliance with the plan.

On a semi-annual basis thereafter, hospitals must report the total percentage of staffing assignments when the number of patients assigned to the nursing staff exceeds the limits provided by the plan. If a hospital is not in compliance with the staffing plan for at least 80% of the nurse staffing assignment in a month, the hospital must, within seven calendar days following the end of the month, report the non-compliance. The semiannual compliance reports must be posted on the hospital's website.

Working Time

Meal/Rest Breaks

Current restrictions on scheduling and recording requirements for meal and rest breaks that apply to only specific healthcare workers have been expanded. Effective July 1, 2024, all hourly frontline staff, who are engaged in clinical services or direct patient care activities, must have scheduled meal and rest breaks, entirely free from duties, unless there is an unforeseeable emergent circumstance related to patient care. The law does not define “scheduled,” which allows for some flexibility.

As such, frontline staff who work more than five consecutive hours must be scheduled for a 30-minute uninterrupted and unpaid meal period, which must commence between the second and fifth hour of their shift. Depending on the length of the shift and the timing of the first meal period, frontline staff may be entitled to additional meal periods. The hospital and employee may mutually agree to waive meal periods.

Frontline staff must also be scheduled for an uninterrupted and paid 10-minute rest break for each four hours of working time, scheduled at any point during each four-hour working period. Rest breaks cannot be waived. Because rest breaks must be scheduled and uninterrupted under the new law, absent further guidance, it is unclear if intermittent rest breaks are permitted. Interrupted rest breaks must include an additional 10 minutes of uninterrupted time and be given as early as possible.

Another significant development in this law is that for any work period, the employer and employee may agree to combine a meal period and a rest break; however, the employee must be freely able to revoke any such agreement. The law is unclear about whether more than one meal period and rest break may be combined. Notably, this may present operational challenges for many providers, whose standard practice may be that an employee clocks out for meal periods but not rest breaks. If the employee must remain on duty during the combined break, the entire break must be paid. If the employee is free from duty, the meal period will be unpaid, while the rest break will be paid. It is unclear how to treat combined breaks that are interrupted, e.g., how should a combined break that is interrupted in the first or last ten minutes be treated.

Further, hospitals must record when an employee misses a meal period or rest break. It is unclear if under the law the employee's actual time for breaks must be recorded, or if an employee attestation that breaks have been taken will suffice. Moreover, a quarterly report must be submitted to the Department of Health which notes the total number of missed meal periods and rest breaks during the quarter.

Overtime

Previously, only specific healthcare employees could not be required to work beyond their scheduled shift or work overtime. Now, hospitals are prohibited from compelling all hourly frontline staff (engaged in clinical services or direct patient care activities) from working beyond their regularly scheduled shift or working overtime. Rather, employees must be free to choose to do either and must not be subject to any adverse action if they choose not to. Any employee accepting overtime who works more than twelve consecutive hours also must now be provided with the option to have at least eight consecutive hours of uninterrupted time off from work following the time worked.

Hospitals may still require employees to work beyond their scheduled shift or work overtime when a patient care procedure is in progress or there is an unforeseeable emergent circumstance. Employees may be required to work prescheduled on-call time as long as it is not used to address “regular” changes to patient census or acuity or increases in the number of employees not reporting for a scheduled shift and it is not used to begin at a time when the duration of the procedure is expected to exceed the employee’s regular scheduled hours of work. Here the law is also unclear. It does not define what a “regular change” is, and particularly if the hospital must be able to predict the change.

And hospitals may require employees to work beyond their scheduled shift or work overtime if reasonable efforts have been made to obtain staffing. As such, hospitals must exhaust and document that they have done all of the following: asked available qualified staff who are working to consent to working additional time, contacted qualified staff who are not working but have made themselves available to work additional time, sought per diem staff, and sought staff from a contracted temporary agency when such staffing is permitted by law or a collective bargaining agreement and routinely used. Hospitals that are chronically short staffed, however, cannot use this exception. The new law, though, does not define what constitutes a “chronic staff shortage”—it is unclear, absent further guidance, if a chronic staffing shortage is assessed hospital-wide or per patient care unit.

Enforcement

By July 1, 2024, the Washington Departments of Health and Labor and Industries must adopt a joint agreement that identifies the roles of each of the two agencies with respect to oversight and enforcement. These state agencies are empowered to jointly investigate a hospital’s staffing plan to ensure compliance, and, if required, take appropriate enforcement action. Beginning January 1, 2027, a hospital found to be in substantial noncompliance must submit a corrective plan, likely to produce a minimum of 80% compliance with the nurse staffing assignments in a month. If a hospital fails to adopt or follow a corrective action plan, it may be subject to steep civil penalties until full compliance is achieved. Hospitals may not be found in violation if reasonable efforts have been made to obtain staffing. Hospitals that are chronically short staffed cannot use this exception. Likewise, no violation will be found if there is an unforeseen emergent circumstance.

Beginning July 1, 2026, the Washington Department of Health is empowered to investigate any employee complaint regarding meal periods and rest breaks. Moreover, the Department may act on its own, without a complaint, if data is discovered suggesting a potential violation. To this end, if the Department determines any hospital fails to submit a meal period and rest break quarterly report or is not 80% compliant with the meal period and rest break requirements, and more than 20% of meal periods and rest breaks were missed, a penalty must be enforced, ranging from $5,000-$20,000 (depending on the number of hospital beds). Subsequent violations are subject to double these amounts.

With respect to alleged retaliation, the Department may investigate complaints that an employee was retaliated against for exercising protected rights; the hospital may provide a position statement and may be required to produce witnesses or pertinent materials. If the Department finds a violation, it may restore an employee to a job held prior to an adverse action or order that any amount owed to the employees resulting from the action be paid in full plus interest.

Finally, the Washington Department of Labor and Industries is empowered to investigate an employee complaint regarding overtime, if the violation occurred within three years of filing. Within 90 days of receiving the complaint, the Department must either issue a closure and determination of compliance or a citation and notice of assessment if a violation is found. The Department may levy a civil penalty of $1,000 for the first three violations, $2,500 for a fourth violation, and $5,000 for each subsequent violation.

For any violation above, hospitals may appeal an assessment to the respective Department’s Director within 30 days of the citation and notice of assessment. Once an appeal is received, the Director must assign an administrative law judge to conduct a de novo hearing on the matter. The Director will issue final orders, based on the ultimate determination of the administrative law judge, which would then be appealable to a state court.

Washington Institute for Public Policy

In addition to heightened workplace standards, the new legislation directs the Washington Institute for Public Policy to conduct a comparative study of statewide hospital staffing plans to those of other states by June 30, 2024. This study likely will be used to explore the efficacy of statewide hospital staffing standards and patient-nursing ratios to address chronic staffing shortages and workplace standards, which may be used to inform further legislation.

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