Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This post was contributed by Kelley E. Kaufman, Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.

In a recent decision, the Supreme Court of Pennsylvania evaluated whether a public employer's ban on employee tobacco use in the workplace affected a "working condition" that was subject to the employer's statutory duty to bargain with the union representing its employees. In Borough of Ellwood City v. Pa. Labor Relations Bd. (pdf), the Court held that, under the Pennsylvania Labor Relations Act, the municipal employer's ban on the use of tobacco products in the workplace was a mandatory subject of bargaining.

The Borough of Ellwood passed an ordinance in 2006, which banned tobacco use on or in Borough-owned buildings, vehicles and equipment – a ban that applied to the Borough's unionized police officers. The Borough unilaterally implemented the ban without bargaining with the union. The union subsequently filed an unfair labor practice charge against the Borough with the Pennsylvania Labor Relations Board, alleging that the Borough failed to bargain over a mandatory subject of bargaining. On appeal, the Court found for the Union, holding that tobacco use restrictions constitute a mandatory subject of bargaining – not an "inherent managerial prerogative." Thus, the Borough was obligated to bargain with the union over the tobacco restrictions.

The Ellwood Court also addressed potential conflicts between a municipality's ability to enact legislation protecting the health, welfare, safety, and general welfare of its citizens with the rights of the police officers to collectively bargain. In reconciling this conflict, the Court noted that, while local legislation promoting clean air and warning of the risks of tobacco use was laudatory, such legislation cannot serve as a barrier to negotiations over the topic when it constitutes a working condition subject to mandatory bargaining.

Although the Borough is a public employer, the Court's decision has implications for public and private employers alike. Many employers are subject to the Pennsylvania Clean Indoor Air Act and similar local ordinances which may impose restrictions on tobacco use in workplaces and public areas. However, unionized employers who unilaterally change existing policies and practices to comply with such restrictions may face challenges from the unions with which they deal. For this reason, it may be advisable for unionized employers to discuss applicable tobacco restrictions and the impact of these restrictions with the union before implementing changes.

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Clinical staffing problems for Pennsylvania healthcare facilities created by shortages of nursing professionals will be greatly exacerbated by a new law prohibiting mandatory overtime for employees engaged in direct patient care. The Commonwealth is already facing a nursing shortage, which is growing worse. According to the Health Resources and Services Administration (HRSA), an arm of the U.S. Department of Health and Human Services, Pennsylvania health care providers will experience a 41 percent vacancy rate in nursing positions by the year 2020, requiring more than 54,000 nurses to provide adequate patient care. Restrictions on the amount of work time for an already short labor pool will likely increase problems.

The Prohibition on Excessive Overtime in Health Care Act becomes effective on July 1, 2009. Health care facilities covered by the law include hospitals, ASCs, hospices, long-term care facilities and other inpatient facilities, but it excludes private physician offices and group practices. Employees protected by the law include all nonsupervisory employees involved in direct patient care activities or clinical services, including individuals employed through a temporary service or employment agency. Physicians, physician’s assistants, dentists, and job classes with no direct patient care are excluded from the overtime limitations.

A health care facility cannot compel a protected employee to work more than an agreed to, predetermined and regular daily shift exclusive of “on call” time, unless one of the following exceptions applies:

(1)     the employee voluntarily agrees;

(2)     there is an unforeseen emergent circumstance but as a “last resort”, after exhausting other staffing options and giving the employee one hour arrange for family care alternatives;

(3)     the extended work is required to complete a patient care procedure already in progress, but only if the employee’s departure would have an adverse effect on the patient.

Employers are permitted to have agreed upon, predetermined and regular shifts greater than 8 hours; however, an employee who volunteers to work more than 12 consecutive hours shall be entitled to 10 hours off duty but may waive the entitlement. Employers may not retaliate against employees who refuse to accept work in excess of the limits. Employers who violate the law are subject to fines ranging from $100 to $1000 per violation.

The Department of Labor and Industry is to develop regulations within 18 months.  The law received modest press as it was signed by the Governor along with 31 other pieces of legislation.

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