Legislative Update

Lori Vocca

Legislative Liaison

Washington State Legislature^[1]

Mandatory Overtime for Nurses

Senate Bill 6675 went into effect on June 13, 2002.� This regulation restricts the use of mandatory overtime for Registered Nurses and Licensed Practice Nurses by Washington healthcare facilities under specific criteria.� Through WSHHRA�s efforts and the efforts of other interested parties (WSHA, NWONE, etc.), we were able to influence the drafting of the Department of Labor & Industries� (DOL) interpretive guidelines (FAQ) on this law.� Although DOL listened to our feedback and incorporated some of our suggestions into the interpretive guidelines, we still object to its published interpretation of chronic staff shortages.� We also believe the DOL�s interpretative guidelines go beyond the law as it relates to reasonable efforts in chronic staffing situations.� Finally, we are concerned about misinterpretations of these guidelines as it relates to management�s absolute right to determine staffing ratios.� At this point, we will watch how these regulations are interpreted by the Department of Labor as violations are reported and investigated.

http://www.leg.wa.gov/sl/2001-02/6675_sl.txt

Expanded Family Care Leave Act

Senate Bill 6426 went into effect on January 6, 2003, and expanded the Family Care rules (WAC 296-130) to allow for the use of sick leave and/or other paid time off to care for specified family members in the case of a serious or emergent health condition.� The use of this leave for specified family members is consistent with an employer�s policies relating to the use of sick leave or paid time off for the employee.� The definition of a family member under this law has been expanded to include all children regardless of age, parent, grandparent, parent-in-law, and spouse.� WSHHRA members and other interested parties participated in the public comment and hearing process.� The Department of Labor & Industries published a Concise Explanatory Statement on January 19, 2003 which responds to many of the comments received.

http://www.leg.wa.gov/sl/2001-02/6426-s_sl.txt

Exempt Staff � Wage & Hour Regulations: Effective February 21, 2003, WAC 296-128 was amended to include clarification on salary and leave deductions for exempt staff.

http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=1&X=517134424&p=1

Nurse Technicians

Effective May 13, 2002, new sections were added to RCW 18.79 relating to the use of nurse technicians in hospitals and nursing homes.� This occurred after an unsuccessful effort by some parties to eliminate the nurse technician role.� The nurse technician role was formalized to ensure public health, safety and welfare.� The immediate impact is that all nurse technicians must become immediately registered with the Nursing Commission.

http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=0&X=517133836&p=1

Key HR Bills in Progress

WSHHRA supports the bills set forth below.� We�re hopeful that these bills can move forward in future legislative sessions.

Liability Reform:� Senate Bill 5728 serves to limit the amount of �deep pocket� liability in several areas, including medical malpractice and employment reference check liability.� This bill would support HR professionals in their ability to provide accurate information in response to reference checks, resulting in greater hiring potential for employers and improved workplace safety.�� This bill was returned to the Senate Rules Committee for a third reading on April 27, 2003.

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=5728

Workers� Compensation Reform:� Washington State is said to have one of the most complex Workers� Compensation systems in the nation.� Over the past four years, time loss recipients have received cost of living increases averaging over 6.6%, despite the fact that inflation is half that rate.[2]� Senate Bill 5378 is intended to implement a comprehensive reform of the system, reducing the complexities and saving a significant amount of money in administrative costs.� It is also intended to eliminate legal uncertainty relating to Workers Compensation claims.�� On April 27, 2003, this bill was returned to the Senate Rules Committee for a third reading.

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=5378

Workers� Compensation Hearing Loss Claims: �Senate Bill 5271 places a limit on hearing loss cash disability payments to two years after the end of employment.� (Currently, employees may come forward many years later claiming hearing loss related to their prior employment.)� This bill would continue to provide hearing aids for all eligible claimants.� On April 27, 2003, this bill was returned to the Senate Rules Committee for a third reading.

�

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=5271

Unemployment Insurance Reform:� House Bill 2152 is intended to provide greater equity in the distribution of taxes and awarding of unemployment insurance benefits.

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=2152

Health Insurance Reform:� Senate Bill 5521 serves to eliminate several employer mandates and to permit employers with 50 employees (versus 25) to offer small group insurance plans which are free of additional mandates.

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=5521

Employment Standards:� Senate Bill 5462 indicates that employers will be held to federal wage and hour law interpretations in situations for which a state law does not exist.

http://www.leg.wa.gov/wsladm/billinfo/dspBillSummary.cfm?billnumber=5462

Ergonomics � ESB 5161:� The final rules relating to ergonomic improvements were published by the Department of Labor & Industries in May 2000.� These rules focus on �caution zone� jobs which are at risk for work-related musculoskeletal disorders (WMSD), and require employers to identify and correct ergonomic hazards in the workplace relating to same.� This would result in significant cost to Washington employers with 50 or more FTEs who are deemed to have the highest risk of WMSDs.� This matter is now under review by the Washington Supreme Court to determine if the Department of Labor & Industries exceeded its authority and failed to comply with rule-making procedures in adopting the rule.� In the meantime, implementation of the ergonomic rule has been delayed to July 2004.

http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=0&X=517151438&p=1

Federal Issues^[3]

Family Time Flexibility Act � Comp. Time (HR 1119):� This bill would allow for private-sector employees to choose paid time off instead of overtime pay.� It was approved by the House Education and Workforce Committee on April 9, 2003, and is on its way to the House floor for a vote.

http://www. shrm.org/hrnews_published/archives/CMS_004171.asp

Civil Rights and Employment Investigation Clarification Act (HR 1543):� This bill was introduced on April 1, 2003, and would amend the Fair Credit Reporting Act (FCRA) as it relates to employee misconduct investigations.� If adopted, this bill would reverse the requirement that sexual harassment investigations conducted by a third party must comply with FCRA notice and disclosure requirements.

http://www.shrm.org/government/insiders_published/CMS_004413.asp#P109_17110

Family Medical Leave Act (FMLA) Clarification (HR35):� FMLA clarification is necessary to assist employers in administering the cumbersome requirements of the FMLA.

http://www.shrm.org/government/federal/lht_published/CMS_001132.asp#P-11_0

Other federal HR issues are included at the following site:

http://www.shrm.org/government/insiders_published/

Requested:� The Voice of HR Professionals

WSHHRA members are encouraged to submit comments regarding these bills by calling our legislators at 1-800-562-6000, writing to me with your feedback (lori.vocca@overlakehospital. org), or writing to Congress via www.shrm.org/government, @ Write Your Member of Congress.� Washington ranked 5th in the nation for sending letters in through the SHRM site in April 2003, having sent a total of 162 letters to our legislators.� Keep up the great work!

Good News For Public District Hospitals

Matt Halliday

Assistant Administrator/HR

Affiliated Health Services

On May 7, Governor Locke signed into law legislation affecting public hospital districts (PHDs).�� Now, before you let out a collective, "what is it now" groan, let me say that, I think you'll find this is a rare bit of good news coming out of Olympia.�� In other words, these legislative amendments don't add additional limitations on mandatory overtime, further expand family leave benefits or even require us to figure out how to provide multiple health plan choices to our employees in an environment where insurers aren't e exactly clamoring for our business.�� On the contrary, these changes will make life as a PHD just a little easier (hey, we'll take what we can get).�

Specifically, the Legislature amended RCW 70.44.060 in two significant respects to enable PHDs to more effectively recruit necessary health care workers.� The first set of amendments will make the process of recruiting easier while the second set will improve PHDs' ability to implement certain substantive recruitment strategies.

In the past, we've found ourselves in the embarrassing situation of having to tell a prospective physician, manager, or other key person being recruited that, although we were extremely excited about their interest in our hospital, they would have to pay for their spouse to come with them for an on-site interview.� We knew that most applicants wouldn't make a relocation decision without considering their spouse's feelings about the community, etc., but we could only explain,� "the State Auditor says� we can only pay an applicant's recruiting-related travel expenses".�

Thanks to the lobbying efforts of the WSHA and AWPHD, we don't have to have these awkward conversations any more!�� According to the revised provisions of RCW 70.44.060(9), PHDs are now specifically permitted to pay for:

actual necessary travel expenses and living expenses� incurred while in travel status for (a) qualified physicians or other healthcare practitioners who are candidates for medical staff positions, and (b) other qualified persons who are candidates for superintendent or other managerial and technical positions, which expenses may include expenses incurred by family members accompanying the candidate, when the district finds that hospitals or other health care facilities owned and operated by it are not adequately staffed and determines that personal interviews with said candidates to be held in the district are necessary or desirable for the adequate staffing of said facilities.

Thus, candidates for key PHD positions no longer must lug with them oversized suit cases in which their spouses are hidden.�� We can lawfully pay for them to sit side by side in the airplane.� An undoubtedly better first impression!

Moreover, the Legislature didn't stop with merely making the process of recruiting candidates easier by removing barriers to family participation; it also made it possible for PHDs to implement substantive recruitment strategies.�� Previously, the State Auditor had determined that PHDs could not enter into contracts with prospective employees to reimburse them for education expenses in exchange for a commitment to work for the PHD following graduation.�� Now, the amendments to RCW 70.44.060(10)(b) specifically allow PHDs to enter into contracts:�

with current or prospective employees, physicians, or other health care practitioners providing for the payment or reimbursement by the public hospital district of health care training or education expenses, including but not limited to debt obligations, incurred by current or prospective employees, physicians, or other health care practitioners in return for their agreement to provide services beneficial to the public hospital district . . .

I'm sure you'll agree that these changes will enable us to more effectively compete with private hospitals for the increasingly scarce pool of qualified health care professionals.�� I just thought you might enjoy a bit of good news from Olympia . . . for a change.

�PERC & Evolving Health Care Bargaining Units � Realistic Bargaining Unit Changes for Changed Circumstances�

Bob Sebris,

SEBRIS BUSTO JAMES

In a recent case for one of our clients, Island Hospital, the Public Employment Relations Commission (PERC) issued a major unit clarification ruling.� It divided a longstanding, essentially �wall-to-wall� bargaining unit, which excluded RN�s, into two new bargaining units:� (1) Professional/Technical Employees and (2) Service/Support Employees.� Island Hospital (Skagit County Public Hospital District 2), Decision 8027 (PECB, 2003).� (A link to the PERC decision is posted at our law firm�s website:� www.sebrisbusto.com.)� PERC granted the petition of Island Hospital, and rejected the arguments of SEIU District 1199NW.� The original unit was certified by PERC almost 30 years ago.� PERC held that because of significant changes in duties and responsibilities, the historical single unit was no longer appropriate.�

SEIU 1199NW claimed that the Hospital�s UC petition called for an improper �severance� of a group of employees from a unit, and that the history of bargaining over the years was proof that the unit was fundamentally appropriate.� It also claimed that the changes in the jobs and functions were not recent or substantial.� Island Hospital argued that the changes to its workforce and operations were substantial and reflected key changes in healthcare and its institution, and that such major changes warranted division of the existing bargaining unit under controlling PERC law and guiding National Labor Relations Board policy and precedent.� PERC endorsed the views of Island Hospital.�

PERC analyzed the significant growth and evolution of Island Hospital.� PERC noted that since 1976 it grew from a small hospital with only about 60 employees in the original unit to a modern hospital that had more than doubled in size today.� PERC observed that it now has about 160 employees in the questioned unit in about 60 different job classifications, and that this involves many new program areas such as pharmacy and oncology, and significantly expanded operations in physical therapy, laboratory, intensive care and other patient care services.� The programs and the duties of workers changed substantially.� PERC wrote:

The circumstances have changed significantly since the existing bargaining unit was first organized, including changes in the size and complexity of health care delivery systems in general, changes in the number and types of employees in this employer�s workforce, changes in the economics of healthcare in general, and changes in employee compensation and recruitment/retention in the professional/technical classes.� Those changes have been dramatic, and fully justify reexamination of the propriety of the historical bargaining unit.

PERC accepted Island Hospital�s views that it was not unduly fragmenting the bargaining units, as private sector hospital units call for eight units under the NLRA.� PERC held that the parties should simply divide the current collective bargaining agreement appropriately into two separate CBA�s until their expiration in the spring of 2004.� Then the parties are to negotiate separate new agreements for each new unit at that time.

CONCLUSION.� PERC did not ignore the dilemma raised by the sweeping and major changes in the facts of life for the modern public hospital district setting.� Island Hospital had difficult and inefficient bargaining because the two diverse �groups� were being squeezed into coverage under one set of negotiations and one contract.� The unit division by PERC solves that problem.� SEIU 1199NW opposed the UC petition, and that was no surprise.� Unions typically seek to consolidate units and centralize the locus of bargaining authority for strategic leverage purposes in the negotiations process.� SEIU is a visionary union, implementing major internal union structural reorganization around the country, and Island Hospital�s UC petition was contrary to SEIU�s long-term vision and its goals for healthcare institution units.� PERC, however, analyzed the clear facts at hand and issued a decision that addresses the bargaining unit needs and reality of modern healthcare in the public sector for Washington.

^[3] www.shrm.org; D. Millikan, Legislative Director, Washington State Council, ([email protected])

2003 Chapter Objectives