§ 7459 — Nursing Staff: Special Rules For Overtime Duty

(a) 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). (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. (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) 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.