Hello, I am a Nurse in the State of West Virginia.
We are currently in the wake of Winter Storm Jonas which has left our hospital in a bind with staffing. I am well aware of the mandation laws currently in action for the state of WV. I understand that a nurse can be mandated to work a 16 hour shift if staffing is needed for the safety of the patients, which I have no problem with and will gladly volunteer in this time of need. However, at our specific facility after a nurse has worked a 16 hour shift, management will not let us leave the building, even if we are not scheduled to work for several days, requiring us to sleep here.
They are at this point threatening us with discipline.
I have just worked a 12 hour shift and am not needed to work an additional 4 hours as my replacement has arrived, they have no use for me. They will not let me leave the hospital even though they have no need for me. They say, "they cannot guarantee that I will make it in for my shift tomorrow night and I am not allowed to leave due to this."
Although extreme, I feel that this is somewhat a hostage situation, lol. I live 5 minutes away from the hospital of which I work, I have even said that I can walk to work of for some reason my 4WD lifted truck cannot make the 2.2 mile trip.
This cannot be legal, refusing a nurse from going home if they are not mandated and are not needed. For instance, a nurse worked her scheduled shift this past Friday and was going to leave at 7pm. They told her she was not needed but she was not allowed to leave.
She isn't scheduled to work again until Monday morning and are forcing her to stay here throughout the weekend? I cannot see how this is legal in anyway, and then on top of forcing us to stay they are intimidating us by throwing termination in our face if we leave.
Specializes in Med-Surg, OB, ICU, Public Health Nursing.
How does that work--do they pay you to be on call? I really wonder what the DOL would say about it, because it seems like if they call you with the expectation that you WILL come in, that is you being on call.
We are are a union shop. We are always paid for being "on call." However, they would not put the entire staff officially "on call."
There are two groups and in a declared disaster, if you live in town, you report first. If you live out of town you would be required to report 48-72 after said OFFICIALLY proclaimed disaster. (No snow here)!
If there were problems or abuses, our shop stewards would be very busy resolving them! No nurse would just let an issue slide.
Can they legally hold you at the hospital, and physically force you to stay against your will? No.
Can they legally discipline you, and perhaps terminate your employment for failure to comply with their (albeit shady) policy? Yes.
Unfortunately, your employer is playing dirty pool, and they know it. Because WV is a work-at-will state, they can fire you for any reason, or no reason at all. In the event they actually do that, in order to have a wrongful termination case against them, you'd likely need to prove illegal or criminal activity was at the source - and it won't be, because they'll only fire you if you leave, which means they didn't hold you against your will. Bluffing that you're forced to stay, or threatening to discipline you if you don't, isn't actually illegal.
Now, that being said, an employer who uses tactics like this to unfairly blackmail nurses into doing what they want without reasonable accommodation/compensation would not be an employer I would work for. If they're doing this, they are/will do other things just as shady.
I'd give them the third-digit salute and hightail it out of there.
I believe this is the current WV law: Basically it says in an unforseen circumstances they can require you to stay. But it would seem to me, and I'm not a lawyer, That in anticipated circumstances, but not during an active actual circumstance, they can't make you stay. It might be worth noting, that in my state, you can be fired for no reason at all. They can simply say 'don't come in anymore' and not give you an excuse. If you're union, they may have complications it they do this, but if you don't...
ARTICLE 5F. NURSE OVERTIME AND PATIENT SAFETY ACT.
§21-5F-1. Legislative findings and purpose.
The Legislature finds and declares that:
(1) It is essential that qualified registered nurses and other licensed health care workers providing direct patient care be
available to meet the needs of patients;
(2) Quality patient care is jeopardized by nurses that work unnecessarily long hours in hospitals;
(3) Health care workers, especially nurses, are leaving their profession because of workplace stresses, long work hours and depreciation of their essential role in the delivery of quality, direct patient care;
(4) It is necessary to safeguard the efficiency, health and general well-being of health care workers in hospitals, as well as the health and general well-being of the persons who use their services;
(5) It is further necessary that health care workers be aware of their rights, duties and remedies with regard to hours worked
and patient safety; and
(6) Hospitals should provide adequate safe nursing staffing without the use of mandatory overtime.
§21-5F-2. Definitions.
For the purposes of this article:
(1) "Hospital" means a facility licensed under the provisions of article five-b, chapter sixteen of this code, but does not include hospitals operated by state or federal agencies.
(2) "Nurse" means a certified or licensed practical nurse or a registered nurse who is providing nursing services and is involved in direct patient care activities or clinical services, but does not include certified nurse anesthetists. Nurse managers are included with respect to their delivery of in-hospital patient care, but this is in no way intended to impact on their 24-hour management responsibility for a unit, area or service.
(3) "Overtime" means the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift.
(4) "Taking action against" means discharging; disciplining; threatening; reporting to the board of nursing; discriminating against; or penalizing regarding compensation, terms, conditions, location or privileges of employment.
(5) "Unforeseen emergent situation" means an unusual, unpredictable or unforeseen circumstance such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions or natural disasters. An unforeseen emergent situation does not include situations in which the hospital has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and scheduled health care worker medical leave.
§21-5F-3. Hospital nursing overtime limitations and requirements.
(b) Notwithstanding subsections (a) and (g) of this section, a nurse may be scheduled for duty or mandated to continue on duty in overtime status in an unforeseen emergent situation that jeopardizes patient safety.
(d) Notwithstanding subsections (a) and (g) of this section, a nurse may be required to work overtime to complete a single patient care procedure already in progress, but nothing in this article shall be construed to permit an employer to use a staffing pattern as a means to require a nurse to complete a procedure as a substitute for mandatory overtime.
(e) Subsection (a) of this section does not apply when a collective bargaining agreement is in place between nurses and the hospital which is intended to substitute for the provisions of this article by incorporating a procedure for the hospital to require overtime.
(f) Subsection (a) of this section does not apply to voluntary overtime.
Each hospital shall designate an anonymous process for patients and nurses to make staffing complaints related to patient safety.
(h) Each hospital shall post, in one or more conspicuous place or places where notices to employee nurses are customarily posted, a notice in a form approved by the commissioner setting forth a nurse's rights under this article.
§21-5F-4. Enforcement; offenses and penalties.
(a) Pursuant to the powers set forth in article one of this chapter, the Commissioner of Labor is charged with the enforcement of this article. The commissioner shall propose legislative and procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish procedures for enforcement of this article. These rules shall include, but are not limited to, provisions to protect due process requirements, a hearings procedure, an appeals procedure, and a notification procedure, including any signs that must be posted by the facility. (b) Any complaint must be filed with the commissioner regarding an alleged violation of the provisions of this article must be made within thirty days following the occurrence of the incident giving rise to the alleged violation. The commissioner shall keep each complaint anonymous until the commissioner finds that the complaint has merit. The commissioner shall establish a process for notifying a hospital of a complaint.
(d) The administrative penalty for the second offense of this article is a reprimand and a fine not to exceed five hundred dollars.
(e) The administrative penalty for the third and subsequent offenses is a fine of not less than two thousand five hundred dollars and not more than five thousand dollars for each violation.
(f) To be eligible to be charged of a second offense or third offense under this section, the subsequent offense must occur within twelve months of the prior offense.
(g) (1) All moneys paid as administrative penalties pursuant to this section shall be deposited into the Health Care Cost Review Fund provided by section eight, article twenty-nine-b, chapter sixteen of this code.
(2) In addition to other purposes for which funds may be expended from the Health Care Cost Review Fund, the West Virginia Health Care Authority shall expend moneys from the fund, in amounts up to but not exceeding amounts received pursuant to subdivision (1) of this subsection, for the following activities in this state:
(A) Establishment of scholarships in medical schools;
(B) Establishment of scholarships for nurses training;
I wonder how many people that have children called in sick for that night shift, if they knew they would have to leave the kids home alone if they couldn't leave when day shift was supposed to be there. I remember years ago there was a horrible storm on night shift, and I rode an offroad motorcycle to work in the blizzard. But in the AM the roads were mostly plowed, the Nurse Manager didn't show up in her $35,000 (a lot of money for a car at the time) emerald green with ivory leather interior SUV. Very inspiring.
What does your facility's policy state? I had to stay over Saturday night because, according to the policy, Jonas resulted in a mandatory emergency. We will get paid OT for any time over 40 hrs, for the time we were asleep, and we got free meals in the cafeteria.
When I worked in the ER we were given the option to stay at work, they provided rooms in the Hospital, be put up in a Motel or be driven back and forth to work by people with 4 wheel drive vehicles. We were paid overtime and compensated for being willing to work over so as to take care of all our patients. They had our meals catered and brought to our break room so we did not have to leave the floor. We rotated taking lunches and breaks. It made for a good feeling knowing Management realized that they were asking us to leave our families and stay there. The job I have now is exactly opposite. They consider Nurses essential employees and say your are required to be at work and get here best you can. Makes for a loss of respect for Nursing Management when they themselves don't come in but expect you too.
I am pretty sure that they cannot *force* you to stay after your shift has ended. They can require mandatory OT as allowed by law. But, I am reasonably sure that coercion or forcing you to stay after your shift has ended might be considered kidnapping. I would call the state attorney general office and ask them if they would consider this a criminal act.
First off, IANAL. That being said, if I understand this provision correctly, "adverse weather conditions" counts towards "unforeseen emergent situation". So, yes, they can require you to work overtime in that event.
However, if I understand the situation correctly, they are NOT forcing mandatory overtime. They are trying to enforce mandatory stay-for-free time by threatening disciplinary action if you don't. This provision has penalties for forcing or coercing nurses outside of certain situations to do mandatory overtime, but if I read the follow up to OP's post correctly, this is technically "voluntary". As in, volunteer to stay for free and keep your job.
The caveat would be sub-section (e), if a collective bargaining agreement is in place that overrides this. Also, the penalties for being found in violation of this are pretty negligible, so maybe they don't care.
Anyway, my two scents. (And I smell poo.) Hope things turned out favorable for you, OP.
Yes making you stay because you might not make it in for a shift in a few days is preposterous. If that were the case, we would all have to live at our workplaces.
nurseactivist
247 Posts
We are are a union shop. We are always paid for being "on call." However, they would not put the entire staff officially "on call."
There are two groups and in a declared disaster, if you live in town, you report first. If you live out of town you would be required to report 48-72 after said OFFICIALLY proclaimed disaster. (No snow here)!
If there were problems or abuses, our shop stewards would be very busy resolving them! No nurse would just let an issue slide.