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September 4, 2023 Focus: Law

Change to nursing OT law seen as nod to organized labor, doing little to address staffing crisis

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By Andrew Larson

A new state law, passed during the recent legislative session, reduces the number of circumstances under which nurses can be required to work mandatory overtime from five to one.

While the legislation gives nurses an extra layer of protection, and perhaps more flexibility over their schedules, experts say it does little to address hospitals’ ongoing nursing staff shortage, which was brought into the spotlight during the COVID-19 pandemic.

Through a vicious cycle, staffing shortages can lead nurses to burn out and leave the industry, thereby exacerbating the shortage, health experts say. The Wall Street Journal recently reported that the labor market is so tight that countries are actually poaching each other’s nurses by offering higher pay and other benefits.

In Connecticut, Hartford-based Connecticut Children’s recently announced it was increasing its hourly minimum wage to $18, in an effort to retain and attract top talent.

The new Connecticut law bars hospitals from mandating nurse overtime unless “patient safety” is at risk and there is “no reasonable alternative.”

Once the new law takes effect Oct. 1, a nurse cannot be ordered to work OT — and can’t be disciplined by his or her employer for refusing if asked — except in an emergency. For nurses, OT is triggered when they work more than 12 hours in a 24-hour period, or after 48 hours in a week.

The law does not define what “patient safety” means, so it will be up to hospitals to decide.

Jason Stanevich

Attorney Jason R. Stanevich, a shareholder with Littler based in the firm’s New Haven office, said mandatory overtime is rare at Connecticut hospitals, and most OT slots are filled on a voluntary basis.

He believes the legislation was meant as a show of support by the General Assembly for organized labor, but that it won’t have much impact on how hospitals operate.

“Hospitals have moved away from strict mandatory OT procedures, with more focus on extra shift incentives,” Stanevich said.

The bigger issue, health system executives have said, is that they’re increasingly being forced to hire nurses from staffing agencies to fill needed positions, driving costs to unprecedented and unsustainable levels.

Statewide, contract labor costs increased 50% from 2019 to 2022, contributing to hospitals’ combined $164 million operating loss in fiscal year 2022, according to the Connecticut Hospital Association.

Hospitals will continue to find nurses to work OT on a voluntary basis, even if it means hiring traveling nurses from agencies, Stanevich said.

Demand surpasses supply

Another change in the legislation taking effect Oct. 1 is that mandatory OT can no longer be negotiated in nursing union contracts, except at state-owned behavioral health facilities.

“It eliminates something that the parties have been able to adequately address through collective bargaining,” Stanevich said. “So, this is really kind of the government stepping into a role that has been filled by direct contract negotiations between unions and hospitals.”

The new legislation also gives direct-care nurses majority representation on special staffing committees in each hospital — a move that is seen as giving nurses more say in determining staffing levels.

Joan Feldman

Joan W. Feldman, a partner with law firm Shipman & Goodwin and chair of its health law practice group, sees legislation like this as providing “short-term fixes to long-term problems.”

“It is most unfortunate that with the nursing shortage issue clearly looming well before the COVID-19 pandemic, that more had not been done by the state and federal governments to address the impending nursing shortage in order to prevent the need for hospitals to impose unwanted demands on nurses simply to ensure that hospital patients receive high-quality care,” Feldman said. “Nurses are essential to the well-being of hospital patients, and the time is now for attracting more talented students to the nursing profession.”

According to estimates from the Governor’s Workforce Council, the state needs about 3,000 new nurses per year, but is only producing 1,900 nursing school graduates annually.

Some colleges have been responding to the industry’s calls for help by launching or planning expanded programs.

For example, the Arizona College of Nursing recently opened its new East Hartford campus and has begun accepting applications for admission. Students can pursue bachelor of science degrees in nursing, including in an accelerated three-year format.

The UConn Board of Trustees recently approved $2 million so administrators can begin planning for a new nursing school building in Storrs, to accommodate a growing number of students applying for the program.

Hartford HealthCare has launched partnerships with Quinnipiac University and Eastern Connecticut State University for new nursing student facilities and programs.

Staffing ratios

Hospital staffing levels were a major focus of the 2023 legislative session.

During a public hearing earlier this year, many nurses expressed fears that chronic understaffing not only hurts nurses, but jeopardizes patient care.

“The chronic short-staffing in the hospitals leads to unsafe patient assignments, causing nurses to put their licenses on the line daily,” said Krista Prendergast, a nursing professor at Southern Connecticut State University. “Nurses feel moral distress when, day after day, they are not able to provide safe and compassionate care to their patients. These conditions cause experienced nurses to leave their positions or the profession.”

One bill that didn’t pass this year proposed to create mandatory employee-to-patient staffing ratios for registered nurses.

The bill drew strong support from nurse associations and unions, but opposition from hospitals, which cited the high cost and loss of ability to control staffing levels on their own.

That legislation could be proposed again during the 2024 legislative session.

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