38 U.S.C. § 7459 — Nursing staff: special rules for overtime duty

submitted 16 years ago by Pub. L. 111-163 to r/title-38-VETERANS-BENEFITS · 354 words · no verdicts yet

in plain englishAI-generated · not legal advice

The VA generally cannot make nursing staff work more than 40 hours a week or more than 8 hours in a row, with some exceptions for certain nurses. Staff can volunteer for more hours, and refusing extra hours can't be used to punish them. In a real, unavoidable emergency, the VA can require more hours, but only under strict conditions.

(a) Limitation. Unless subsection (c) applies, the Secretary can't make nursing staff work more than 40 hours in a week (or 24 hours for certain staff covered by section 7456) or more than 8 hours in a row (or 12 hours for staff covered by sections 7456 or 7456A). (b) Voluntary overtime. Nursing staff can choose to work extra hours that would otherwise be against the rule in (a). If staff refuse to work those extra hours, the VA can't use that refusal as a reason to treat them unfairly under civil rights law, to fire or dismiss them, or to take any other negative action against them. (c) Overtime under emergency circumstances. The Secretary can require extra hours only if all of these are true: (A) the extra work is needed because of an emergency nobody could have reasonably seen coming; (B) the emergency isn't a repeat problem and wasn't caused or made worse by the Secretary not paying attention or not planning ahead; (C) the Secretary already made real, good-faith efforts to find volunteers and it didn't work; (D) the nursing staff being ordered to work have the special skills the situation needs; and (E) proper patient care requires the same staff to see a case, treatment, or procedure through to the end. Even then, staff can't be required to keep working these extra hours once they're no longer directly needed to respond to the emergency. (d) Nursing staff defined. "Nursing staff" means a registered nurse, a licensed practical or vocational nurse, a nurse assistant appointed under this law or under title 5, or any other nursing position the Secretary designates for this section.

the actual law source: uscode.house.gov ↗public domain

(a)Limitation.—

Except as provided in subsection (c), the Secretary may not require nursing staff to work more than 40 hours (or 24 hours if such staff is covered under section 7456 of this title) in an administrative work week or more than eight consecutive hours (or 12 hours if such staff is covered under section 7456 or 7456A of this title).

(b)Voluntary Overtime.—

(1)

Nursing staff may on a voluntary basis elect to work hours otherwise prohibited by subsection (a).

(2)

The refusal of nursing staff to work hours prohibited by subsection (a) shall not be grounds—

(A)

to discriminate (within the meaning of section 704(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(a))) against the staff;

(B)

to dismiss or discharge the staff; or

(C)

for any other adverse personnel action against the staff.

(c)Overtime Under Emergency Circumstances.—

(1)

Subject to paragraph (2), the Secretary may require nursing staff to work hours otherwise prohibited by subsection (a) if—

(A)

the work is a consequence of an emergency that could not have been reasonably anticipated;

(B)

the emergency is non-recurring and is not caused by or aggravated by the inattention of the Secretary or lack of reasonable contingency planning by the Secretary;

(C)

the Secretary has exhausted all good faith, reasonable attempts to obtain voluntary workers;

(D)

the nurse staff have critical skills and expertise that are required for the work; and

(E)

the work involves work for which the standard of care for a patient assignment requires continuity of care through completion of a case, treatment, or procedure.

(2)

Nursing staff may not be required to work hours under this subsection after the requirement for a direct role by the staff in responding to medical needs resulting from the emergency ends.

(d)Nursing Staff Defined.—

In this section, the term “nursing staff” includes the following:

(1)

A registered nurse.

(2)

A licensed practical or vocational nurse.

(3)

A nurse assistant appointed under this chapter or title 5.

(4)

Any other nurse position designated by the Secretary for purposes of this section.

Source credit: (Added Pub. L. 111–163, title VI, § 602(a)(1), May 5, 2010, 124 Stat. 1172.)

history & why it existsrecord from the source credit

2010Enacted · Pub. L. 111-163 · 124 Stat. 1172

A history note hasn’t been published yet. The record shows enactment by Pub. L. 111-163 on 2010-05-05.

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