§ 167 — Restrictions on consecutive hours of work for nurses

§ 167. Restrictions on consecutive hours of work for nurses. 1. When\nused in this section:\n a. "Health care employer" shall mean any individual, partnership,\nassociation, corporation, limited liability company or any person or\ngroup of persons acting directly or indirectly on behalf of or in the\ninterest of the employer, which provides health care services (i) in a\nfacility licensed or operated pursuant to article twenty-eight of the\npublic health law, including any facility operated by the state, a\npolitical subdivision or a public corporation as defined by section\nsixty-six of the general construction law, or (ii) in a facility\noperated by the state, a political subdivision or a public corporation\nas defined by section sixty-six of the general construction law,\noperated or licensed pursuant to the mental hygiene law, the education\nlaw, the correction law, or section five hundred four of the executive\nlaw.\n b. "Nurse" shall mean a registered professional nurse or a licensed\npractical nurse as defined by article one hundred thirty-nine of the\neducation law who provides direct patient care.\n c. "Regularly scheduled work hours", including pre-scheduled on-call\ntime and the time spent for the purpose of communicating shift reports\nregarding patient status necessary to ensure patient safety, shall mean\nthose hours a nurse has agreed to work and is normally scheduled to work\npursuant to the budgeted hours allocated to the nurse's position by the\nhealth care employer; and if no such allocation system exists, some\nother measure generally used by the health care employer to determine\nwhen an employee is minimally supposed to work, consistent with the\ncollective bargaining agreement, if any. Nothing in this section shall\nbe construed to permit an employer to use on-call time as a substitute\nfor mandatory overtime.\n 2. a. Notwithstanding any other provision of law no health care\nemployer shall require a nurse to work more than that nurse's regularly\nscheduled work hours, except pursuant to subdivision three of this\nsection.\n b. Nothing in this section shall prohibit a nurse from voluntarily\nworking overtime.\n 3. The limitations provided for in this section shall not apply in the\ncase of:\n a. a health care disaster, such as a natural or other type of disaster\nthat increases the need for health care personnel, unexpectedly\naffecting the county in which the nurse is employed or in a contiguous\ncounty; or\n b. a federal, state or county declaration of emergency in effect in\nthe county in which the nurse is employed or in a contiguous county; or\n c. where a health care employer determines there is an emergency,\nnecessary to provide safe patient care. For the purposes of this\nparagraph, "emergency", including an unanticipated staffing emergency,\nis defined as an unforeseen event that could not be prudently planned\nfor by an employer and does not regularly occur; or\n d. an ongoing medical or surgical procedure in which the nurse is\nactively engaged and whose continued presence through the completion of\nthe procedure is needed to ensure the health and safety of the patient.\n 4. The provisions of this section are intended as a remedial measure\nto protect the public health and the quality of patient care, and shall\nnot be construed to diminish or waive any rights of any nurse pursuant\nto any other law, regulation, or collective bargaining agreement.\n 5. Oversight of the use of mandatory overtime during an emergency. a.\nThe commissioner, in consultation with the commissioner of health, shall\nhave the authority to promulgate any regulations necessary to carry out\nthe provisions of this section.\n b. Any health care employer that utilizes an exception to the\nlimitation on mandatory overtime provisions as provided for in\nsubdivision three of this section shall notify the department when such\nprovisions are in use. If a health care employer has utilized the\nmandatory overtime provisions as provided for in this section for\nfifteen days or more in a given month, the employer shall report to the\ndepartment and the department of health: (i) the number of days\nmandatory overtime was required; (ii) the number of employees that were\nrequired to remain on duty in overtime status; and (iii) the dates and\ntimes mandatory overtime was required. If a health care employer has\nutilized mandatory overtime provisions under this section for forty-five\ndays or more in any consecutive three month period the health care\nemployer shall file with the department and the department of health an\nexplanation for why mandatory overtime was required and provide an\nestimate of when the employer intends to cease the use of mandatory\novertime.\n c. The department shall establish an enforcement officer to oversee\ninvestigations into any complaints of violations of this section.\n d. The health care employer shall, before utilizing mandatory overtime\nprovisions and requiring an on-duty employee to remain, make a good\nfaith effort to have overtime covered on a voluntary basis, including,\nbut not limited to, calling per diems, agency nurses, assigning floats,\nor requesting an additional day of work from off-duty employees, to the\nextent such staffing options exist. Failure to engage in a good faith\neffort pursuant to this section shall be a violation. Any employee who\nhas been required to work in violation of this section may file a\ncomplaint with the enforcement officer alleging such violation. Any\ncomplaint made pursuant to this paragraph must be made in good faith.\n 6. Upon receipt of a complaint pursuant to subdivision five of this\nsection, the enforcement officer may cause such investigation to be\nmade, in consultation with the department of health and shall notify the\nemployer. If, after investigation, the commissioner determines that an\nemployer has violated this section, the commissioner shall issue to the\nemployer an order directing compliance therewith, which shall describe\nparticularly the alleged violation. A copy of such order shall be\nprovided to any employee who has filed a complaint and to his or her\nauthorized representative. The commissioner may assess the employer a\ncivil penalty in an amount not to exceed one thousand dollars for a\nfirst violation, two thousand dollars for a second violation if within\ntwelve months, or three thousand dollars for a third or subsequent\nviolation of this section if within twelve months; provided, however,\nthat the department may assess an employer a civil penalty of not more\nthan five hundred dollars for any violation of paragraph b of\nsubdivision five of this section.\n 7. The department shall develop and make available on its website a\nposter containing information for employees on filing a complaint\npursuant to this section. Every health care employer shall display such\nposter in a conspicuous location accessible to employees in the\nworkplace.\n