HB1164 97TH GENERAL ASSEMBLY

LRB097 05316 KTG 45371 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1164

Introduced 02/08/11, by Rep. Richard Morthland

SYNOPSIS AS INTRODUCED:

20 ILCS 510/510-40 new
20 ILCS 1705/4.2a new
20 ILCS 2310/2310-13 new
20 ILCS 2805/2.09 new
305 ILCS 5/12-4.43 new
730 ILCS 5/3-6-2.10 new

Amends the Department of Children and Family Services Powers Law of the Civil Administrative Code of Illinois, the Mental Health and Developmental Disabilities Administrative Act, the Department of Public Health Powers and Duties Law of the Civil Administrative Code of Illinois, the Department of Veterans Affairs Act, the Illinois Public Aid Code, and the Unified Code of Corrections. Provides that no nurse who is paid an hourly wage and who has direct responsibility to oversee or carry out nursing care or related duties may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort, and limits the time of such overtime. Provides that when a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time. Prohibits retaliation because a nurse refuses to work mandated overtime as prohibited under these provisions. Authorizes the filing of complaints alleging violations of these provisions. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Department of Children and Family Services Powers Law of the Civil Administrative Code of Illinois is amended by adding Section 510-40 as follows:

(20 ILCS 510/510-40 new)

Sec. 510-40. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by the Department in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of a disaster plan, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which the Department fails to have enough nursing staff to meet its usual and reasonably predictable nursing needs.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. The Department may not discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of the Department of Children and Family Services who is subject to this Section may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Children and Family Services within 3 business days after the complaint is filed. The Department of Labor shall work with the Department of Children and Family Services to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The Department may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 10. The Mental Health and Developmental Disabilities Administrative Act is amended by adding Section 4.2a as follows:

(20 ILCS 1705/4.2a new)

Sec. 4.2a. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by a facility described in subsection (a) of Section 4 of this Act in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of the disaster plan of a facility described in subsection (a) of Section 4, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which a facility fails to have enough nursing staff to meet the usual and reasonably predictable nursing needs of its recipients.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. No facility may discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of a facility that is subject to this Act may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Human Services or the Department of Public Health, whichever is responsible for regulating the facility in question, and to the facility in question within 3 business days after the complaint is filed. The Department of Labor shall work with the facility to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The facility may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 15. The Department of Public Health Powers and Duties Law of the Civil Administrative Code of Illinois is amended by adding Section 2310-13 as follows:

(20 ILCS 2310/2310-13 new)

Sec. 2310-13. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by the Department in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of a disaster plan, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which the Department fails to have enough nursing staff to meet its usual and reasonably predictable nursing needs.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. The Department may not discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of the Department of Public Health who is subject to this Section may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Public Health within 3 business days after the complaint is filed. The Department of Labor shall work with the Department of Public Health to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The Department may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 20. The Department of Veterans Affairs Act is amended by adding Section 2.09 as follows:

(20 ILCS 2805/2.09 new)

Sec. 2.09. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by a facility in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of a facility's disaster plan, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which a facility fails to have enough nursing staff to meet the usual and reasonably predictable nursing needs of its residents.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. No facility may discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of a facility that is subject to this Act may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Veterans' Affairs and to the facility in question within 3 business days after the complaint is filed. The Department of Labor shall work with the facility to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The facility may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 25. The Illinois Public Aid Code is amended by adding Section 12-4.43 as follows:

(305 ILCS 5/12-4.43 new)

Sec. 12-4.43. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by the Department of Healthcare and Family Services in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of a disaster plan, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which the Department fails to have enough nursing staff to meet its usual and reasonably predictable nursing needs.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. The Department may not discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of the Department who is subject to this Section may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Healthcare and Family Services within 3 business days after the complaint is filed. The Department of Labor shall work with the Department of Healthcare and Family Services to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The Department of Healthcare and Family Services may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 30. The Unified Code of Corrections is amended by adding Section 3-6-2.10 as follows:

(730 ILCS 5/3-6-2.10 new)

Sec. 3-6-2.10. Nurse mandated overtime prohibited.

(a) Definitions. As used in this Section:

"Mandated overtime" means work that is required by a correctional facility regulated under this Code in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b).

"Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care or related duties.

"Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of the disaster plan of a correctional facility regulated under this Code, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which a correctional facility fails to have enough nursing staff to meet the usual and reasonably predictable nursing needs of its committed persons.

(b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift.

(c) Off-duty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift.

(d) Retaliation prohibited. No correctional facility may discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b).

(e) Violations. Any employee of a correctional facility that is subject to this Code may file a complaint with the Department of Labor regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department of Labor must forward notification of the alleged violation to the Department of Corrections and to the correctional facility in question within 3 business days after the complaint is filed. The Department of Labor shall work with the correctional facility to resolve the alleged violation.

(f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required or compelled to work overtime against his or her will. The correctional facility may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work.

Section 99. Effective date. This Act takes effect upon becoming law.