Mandatory Periodic Breaks for Pharmacists Upheld

FEBRUARY 01, 2007
Joseph L. Fink III, BSPharm, JD

Issue of the Case

The issue presented for decision by the Supreme Court of an eastern state was whether a state Board of Pharmacy has the authority to limit the number of continuous hours a pharmacist may work under the power conferred to the board by the legislature to "adopt rules governing the filling, refilling, and transfer of prescription orders."

Facts of the Case

The state Board of Pharmacy followed proper procedures when adopting a rule limiting the number of continuous hours a pharmacist may practice without a break. The agency gave public notice that it was considering adopting such a rule, subsequently published the proposed wording, and conducted a public hearing to solicit comments for review.

Wording of the proposed rule was as follows: "Permit holder shall not require a pharmacist to work longer than 12 continuous hours per work day. A pharmacist working longer than 6 continuous hours per work day shall be allowed during that time period to take a 30 minute meal break and one additional 15 minute break."

Following all that activity, the board adopted the final language of the regulation and, as required by state law, submitted the proposed regulation to the state's Rules Review Commission. The commission is an independent entity within the executive branch of the state government charged with reviewing rules and regulations proposed by state agencies.

To be upheld by the commission, a regulation must meet several criteria:

"(1) It is within the authority delegated to the agency by the General Assembly,

(2) It is clear and unambiguous,

(3) It is reasonably necessary to implement or interpret an enactment of the General Assembly, or of Congress, or a regulation of a federal agency?, and

(4) It was adopted in accordance with the procedures outlined in the state's Administrative Procedures Act."

Here, the commission concluded that item (1) was absent. The Rules Review Commission ruled that the board did not have authority conferred by the legislature to adopt the rule in question. Administrative agencies generally have no inherent power or authority; it must always be assigned by the legislature.

The board declined the opportunity to revise the regulation, and the commission sent it back to the board. The board then petitioned the commission to have it declare that the rule was valid. State statutes require that the commission act within 60 days on such petitions, which did not occur. As a result, the petition was considered to have been denied.

The board then went to a trial court asking that the judge overturn the commission's decision that the rule was invalid because it was beyond the scope of authority of the board. Sometimes, one will hear the legal phrase ultra vires action used to describe steps taken by an administrative agency that falls outside its statutory authority.

The judge at the trial court ruled that the board did not have authority to adopt the rule regulating hours worked and break time. State trial courts rarely publish opinions, so it is not known what weight the judge attached to various arguments at that level.

The Board of Pharmacy appealed to the Court of Appeals, the intermediate appellate court of the state, arguing that the judge at the trial court level had erred. It was not successful at this judicial level either; it lost again, although 1 of the 3 judges who had heard the case agreed with the board that it had the necessary authority, stating:

"The majority opinion rests upon the assertion that ‘setting limits on the number of hours a pharmacist can work and requiring breaks for meals and otherwise, clearly does not concern the filling, refilling, and transfer of prescriptions.'I disagree."

The majority of 2 judges ruled that the Pharmacy Act did not authorize the board to adopt such a rule, and furthermore that the sole agency of the state with authority to regulate working hours was the state Department of Law, under authority conferred by the Wage and Hour Act.

The board then requested that the state Supreme Court take up the case, which it did, and persistence was rewarded.

The Court's Ruling

In an unusually succinct published opinion, the state Supreme Court ruled: "We reverse the Court of Appeals for the reasons stated in the dissent."

The Court's Reasoning

The dissenting opinion at the Court of Appeals level stated the judge's conclusion that "the statute allowing the Board of Pharmacy to ‘adopt rules governing the filling, refilling, and transfer of prescription orders' authorized the Board to adopt a rule limiting the number of consecutive hours that a licensed pharmacist may work." The Supreme Court agreed with that analysis.

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.