Relates to restrictions on consecutive hours of work for nurses; provides circumstances for the reinstatement of limitations on mandatory overtime; provides for civil penalties for employers who violate work hours limitations.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8940
SPONSOR: Bronson TITLE OF BILL:
An act to amend the labor law, in relation to restrictions on consec-
utive hours of work for nurses
PURPOSE OR GENERAL IDEA OF BILL:
This bill would limit the time of the suspension of mandatory overtime
for nurses for a natural disaster or declared emergency. It would
prevent an employer from declaring a staffing emergency for routine
nurse staffing needs and impose monetary penalties for violation of the
law.
SUMMARY OF PROVISIONS:
Section one would amend Section 167 of the Labor Law to require that
mandatory overtime limitations be reinstated at the end of a health care
disaster and are not to exceed three consecutive days; require that
limitations on mandatory overtime be reinstated at the end of a declared
emergency or within 30 days, whichever is sooner; clarify that routine
staffing needs do not constitute a staffing emergency; and requires the
department to assess a civil penalty for violations of the section.
Section two would establish the effective date.
JUSTIFICATION:
The ban on Mandatory Overtime (MOT) for nurses in New York state was
intended to enhance patient safety and increase nurse retention. Howev-
er, the law has been challenging to enforce and causes nurses to leave
the profession. The current mandatory overtime law allows a waiver .of
enforcement during a declared emergency, and without a strict time limit
on the duration of the mandatory overtime waiver, many nurses choose to
leave the profession rather than deal with unlimited forced overtime.
This legislation addresses the ongoing staffing crisis among nurses and
improves enforcement of mandatory overtime. Currently the law allows for
mandatory overtime during a natural disaster. This legislation would
limit the law's suspension for a natural disaster or declared emergency
and would prevent an employer from declaring a staffing emergency for
routine nurse staffing needs. This legislation would also impose mone-
tary penalties for employers who violate the law. The state continues to
face issues related to nurse retention and by banning unfair mandatory
overtime practices it will increase the number of nurses who want to
work and benefit the patients that they serve.
PRIOR LEGISLATIVE HISTORY:
2021-2022: A8874-B - Vetoed; Veto Memo 193
2023-2024: A2057 - Referred to Labor; enacting clause stricken
FISCAL IMPLICATIONS FOR STATE AND. LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act would take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8940
IN ASSEMBLY
January 30, 2024
___________
Introduced by M. of A. BRONSON -- read once and referred to the Commit-
tee on Labor
AN ACT to amend the labor law, in relation to restrictions on consec-
utive hours of work for nurses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 3, 4 and 5 of section 167 of the labor law,
2 subdivisions 3 and 4 as amended by chapter 815 of the laws of 2022 and
3 paragraph c of subdivision 3 and subdivision 5 as amended by chapter 27
4 of the laws of 2023, are amended to read as follows:
5 3. The limitations provided for in this section shall not apply in the
6 case of:
7 a. a health care disaster, such as a natural or other type of disaster
8 that increases the need for health care personnel, unexpectedly affect-
9 ing the county in which the nurse is employed or in a contiguous county.
10 The limitations on mandatory overtime shall be reinstated at the end of
11 the health care disaster and shall not exceed three consecutive days; or
12 b. a federal, state or county declaration of emergency in effect in
13 the county in which the nurse is employed or in a contiguous county. The
14 limitations on mandatory overtime shall be reinstated at the end of the
15 declared emergency or after thirty consecutive days, whichever is short-
16 er, provided that, pursuant to section twenty-nine-a of the executive
17 law, nothing in this subdivision shall limit the power of the governor
18 to suspend the provisions of this subdivision while a federal, state, or
19 county declaration of emergency is in effect; or
20 c. where a health care employer determines there is an emergency,
21 necessary to provide safe patient care. For the purposes of this para-
22 graph, "emergency", including an unanticipated staffing emergency, is
23 defined as an unforeseen event that could not be prudently planned for
24 by an employer [and], does not regularly occur, and does not include
25 routine nurse staffing needs that arose due to typical staffing
26 patterns, typical levels of absenteeism, and time off typically approved
27 by the employer for vacations, holidays, sick leave, and personal leave;
28 or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06876-02-4
A. 8940 2
1 d. an ongoing medical or surgical procedure in which the nurse is
2 actively engaged and whose continued presence through the completion of
3 the procedure is needed to ensure the health and safety of the patient.
4 4. The department shall assess an employer a civil penalty of not more
5 than one thousand dollars for a first violation, no more than two thou-
6 sand five hundred dollars for a second violation within three years, and
7 no more than five thousand dollars for a third or subsequent violation
8 within three years where an employer requires a nurse to work more than
9 such nurse's regularly scheduled work hours; provided, further, that the
10 employee shall receive an additional fifteen percent of the overtime
11 payment from the employer for each violation.
12 5. The provisions of this section are intended as a remedial measure
13 to protect the public health and the quality of patient care, and shall
14 not be construed to diminish or waive any rights of any nurse pursuant
15 to any other law, regulation, or collective bargaining agreement.
16 [5.] 6. Oversight of the use of mandatory overtime during an emergen-
17 cy. a. The commissioner, in consultation with the commissioner of
18 health, shall have the authority to promulgate any regulations necessary
19 to carry out the provisions of this section.
20 b. Any health care employer that utilizes an exception to the limita-
21 tion on mandatory overtime provisions as provided for in subdivision
22 three of this section shall notify the department when such provisions
23 are in use. If a health care employer has utilized the mandatory over-
24 time provisions as provided for in this section for fifteen days or more
25 in a given month, the employer shall report to the department and the
26 department of health: (i) the number of days mandatory overtime was
27 required; (ii) the number of employees that were required to remain on
28 duty in overtime status; and (iii) the dates and times mandatory over-
29 time was required. If a health care employer has utilized mandatory
30 overtime provisions under this section for forty-five days or more in
31 any consecutive three month period the health care employer shall file
32 with the department and the department of health an explanation for why
33 mandatory overtime was required and provide an estimate of when the
34 employer intends to cease the use of mandatory overtime.
35 c. The department shall establish an enforcement officer to oversee
36 investigations into any complaints of violations of this section.
37 d. The health care employer shall, before utilizing mandatory overtime
38 provisions and requiring an on-duty employee to remain, make a good
39 faith effort to have overtime covered on a voluntary basis, including,
40 but not limited to, calling per diems, agency nurses, assigning floats,
41 or requesting an additional day of work from off-duty employees, to the
42 extent such staffing options exist. Failure to engage in a good faith
43 effort pursuant to this section shall be a violation. Any employee who
44 has been required to work in violation of this section may file a
45 complaint with the enforcement officer alleging such violation. Any
46 complaint made pursuant to this paragraph must be made in good faith.
47 § 2. This act shall take effect immediately.
