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A00286 Summary:

BILL NOA00286
 
SAME ASSAME AS S01997
 
SPONSORGunther
 
COSPNSRBarron, Steck, Jacobson, Braunstein, Cruz, Richardson, Hevesi, Englebright
 
MLTSPNSR
 
Amd 167, Lab L
 
Assesses an employer a civil penalty of not less than one thousand nor more than ten thousand dollars, per violation where an employer requires a nurse to work more than such nurse's regularly scheduled work hours; further provides that the employee shall receive an additional fifteen percent of the overtime payment from the employer for each violation.
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A00286 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           286
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M.  of  A. GUNTHER, BARRON, STECK, JACOBSON, BRAUNSTEIN,
          CRUZ, RICHARDSON -- read once and referred to the Committee on Labor
 
        AN ACT to amend the labor  law,  in  relation  to  the  restrictions  on
          consecutive 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. Section 167 of the labor law, as added by  chapter  493  of
     2  the laws of 2008, is amended to read as follows:
     3    §  167.  Restrictions on consecutive hours of work for nurses. 1. When
     4  used in this section:
     5    a. "Health care employer"  shall  mean  any  individual,  partnership,
     6  association,  corporation,  limited  liability  company or any person or
     7  group of persons acting directly or indirectly on behalf of  or  in  the
     8  interest  of  the employer, which provides health care services (i) in a
     9  facility licensed or operated pursuant to article  twenty-eight  of  the
    10  public health law, including any facility operated by the state, a poli-
    11  tical  subdivision  or a public corporation as defined by section sixty-
    12  six of the general construction law, or (ii) in a facility  operated  by
    13  the state, a political subdivision or a public corporation as defined by
    14  section  sixty-six of the general construction law, operated or licensed
    15  pursuant to the mental  hygiene  law,  the  education  law,  the  social
    16  services law or the correction law.
    17    b.  "Nurse"  shall  mean a registered professional nurse or a licensed
    18  practical nurse as defined by article one  hundred  thirty-nine  of  the
    19  education law who provides direct patient care.
    20    c.  "Regularly  scheduled work hours", including pre-scheduled on-call
    21  time and the time spent for the purpose of communicating  shift  reports
    22  regarding  patient status necessary to ensure patient safety, shall mean
    23  those hours a nurse has agreed to work and is normally scheduled to work
    24  pursuant to the budgeted hours allocated to the nurse's position by  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02199-01-1

        A. 286                              2
 
     1  health  care  employer;  and  if  no such allocation system exists, some
     2  other measure generally used by the health care  employer  to  determine
     3  when  an  employee  is  minimally  supposed to work, consistent with the
     4  collective  bargaining  agreement, if any. Nothing in this section shall
     5  be construed to permit an employer to use on-call time as  a  substitute
     6  for mandatory overtime.
     7    2.  a.  Notwithstanding  any  other  provision  of  law no health care
     8  employer shall require a nurse to work more than that nurse's  regularly
     9  scheduled  work  hours,  except  pursuant  to  subdivision three of this
    10  section.
    11    b. Nothing in this section shall prohibit  a  nurse  from  voluntarily
    12  working overtime.
    13    3. The limitations provided for in this section shall not apply in the
    14  case of:
    15    a. a health care disaster, such as a natural or other type of disaster
    16  that  increases the need for health care personnel, unexpectedly affect-
    17  ing the county in which the nurse is employed or in a contiguous county;
    18  or
    19    b. a federal, state or county declaration of emergency  in  effect  in
    20  the county in which the nurse is employed or in a contiguous county; or
    21    c.  where  a  health  care  employer determines there is an emergency,
    22  necessary to provide safe patient care, in which case  the  health  care
    23  provider  shall,  before requiring an on-duty employee to remain, make a
    24  good faith effort to have overtime covered on a voluntary basis, includ-
    25  ing, but not limited to, calling per  diems,  agency  nurses,  assigning
    26  floats, or requesting an additional day of work from off-duty employees,
    27  to  the  extent  such  staffing  options exist. For the purposes of this
    28  paragraph, "emergency", including an unanticipated  staffing  emergency,
    29  is  defined  as  an unforeseen event that could not be prudently planned
    30  for by an employer and does not regularly occur; or
    31    d. an ongoing medical or surgical procedure  in  which  the  nurse  is
    32  actively  engaged and whose continued presence through the completion of
    33  the procedure is needed to ensure the health and safety of the patient.
    34    4. The provisions of this section are intended as a  remedial  measure
    35  to  protect the public health and the quality of patient care, and shall
    36  not be construed to diminish or waive any rights of any  nurse  pursuant
    37  to any other law, regulation, or collective bargaining agreement.
    38    5.  If,  after  investigation,  the  commissioner  determines  that an
    39  employer has violated this section, the commissioner shall issue to  the
    40  employer  an  order directing compliance therewith, which shall describe
    41  particularly the alleged violation.  A  copy  of  such  order  shall  be
    42  provided  to  any  employee  who has filed a complaint and to his or her
    43  authorized representative. The commissioner shall assess the employer  a
    44  civil  penalty  of not less than one thousand nor more than ten thousand
    45  dollars, per violation. The employee shall receive an additional fifteen
    46  percent of the overtime payment from the employer for each violation  as
    47  damages.
    48    §  2.  This  act  shall take effect on the sixtieth day after it shall
    49  have become a law.
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