Mandatory Periodic Breaks for Pharmacists Upheld

Pharmacy Times, Volume 0, 0

Issue of the Case

The issue presented for decision bythe Supreme Court of an eastern statewas whether a state Board of Pharmacyhas the authority to limit the number ofcontinuous hours a pharmacist maywork under the power conferred to theboard by the legislature to "adopt rulesgoverning the filling, refilling, and transferof prescription orders."

Facts of the Case

The state Board of Pharmacy followedproper procedures when adopting a rulelimiting the number of continuous hoursa pharmacist may practice without abreak. The agency gave public notice thatit was considering adopting such a rule,subsequently published the proposedwording, and conducted a public hearingto solicit comments for review.

Wording of the proposed rule was asfollows: "Permit holder shall not requirea pharmacist to work longer than 12continuous hours per work day. A pharmacistworking longer than 6 continuoushours per work day shall be allowedduring that time period to take a 30minute meal break and one additional15 minute break."

Following all that activity, the boardadopted the final language of the regulationand, as required by state law, submittedthe proposed regulation to thestate's Rules Review Commission. Thecommission is an independent entitywithin the executive branch of the stategovernment charged with reviewingrules and regulations proposed by stateagencies.

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

"(1) It is within the authority delegatedto the agency by the GeneralAssembly,

(2) It is clear and unambiguous,

(3) It is reasonably necessary toimplement or interpret an enactmentof the General Assembly, orof Congress, or a regulation of afederal agency?, and

(4) It was adopted in accordance withthe procedures outlined in thestate's Administrative ProceduresAct."

Here, the commission concluded thatitem (1) was absent. The Rules ReviewCommission ruled that the board did nothave authority conferred by the legislatureto adopt the rule in question.Administrative agencies generally haveno inherent power or authority; it mustalways be assigned by the legislature.

The board declined the opportunity torevise the regulation, and the commissionsent it back to the board. The boardthen petitioned the commission to haveit declare that the rule was valid. Statestatutes require that the commission actwithin 60 days on such petitions, whichdid not occur. As a result, the petitionwas considered to have been denied.

The board then went to a trial courtasking that the judge overturn the commission'sdecision that the rule wasinvalid because it was beyond the scopeof authority of the board. Sometimes,one will hear the legal phrase ultra viresaction used to describe steps taken byan administrative agency that falls outsideits statutory authority.

The judge at the trial court ruled thatthe board did not have authority to adoptthe rule regulating hours worked andbreak time. State trial courts rarely publishopinions, so it is not known whatweight the judge attached to variousarguments at that level.

The Board of Pharmacy appealed tothe Court of Appeals, the intermediateappellate court of the state, arguing thatthe judge at the trial court level haderred. It was not successful at this judiciallevel either; it lost again, although 1of the 3 judges who had heard the caseagreed with the board that it had thenecessary authority, stating:

"The majority opinion rests upon theassertion that ‘setting limits on the numberof hours a pharmacist can work andrequiring breaks for meals and otherwise,clearly does not concern the filling,refilling, and transfer of prescriptions.'Idisagree."

The majority of 2 judges ruled that thePharmacy Act did not authorize theboard to adopt such a rule, and furthermorethat the sole agency of the statewith authority to regulate working hourswas the state Department of Law, underauthority conferred by the Wage andHour Act.

The board then requested that thestate Supreme Court take up the case,which it did, and persistence wasrewarded.

The Court's Ruling

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

The Court's Reasoning

The dissenting opinion at the Court ofAppeals level stated the judge's conclusionthat "the statute allowing the Boardof Pharmacy to ‘adopt rules governingthe filling, refilling, and transfer of prescriptionorders' authorized the Board toadopt a rule limiting the number of consecutivehours that a licensed pharmacistmay work." The Supreme Courtagreed with that analysis.

Dr. Fink is professor of pharmacylaw and policy at theUniversity of KentuckyCollege of Pharmacy,Lexington.