BAILEY, BENJAMIN, BIAGGI, BROUK, HOYLMAN, MANNION, MAY, RAMOS, SALAZAR, SAVINO
MLTSPNSR
Amd 167, Lab L
Assesses an employer a civil penalty where an employer requires a nurse to work more than such nurse's regularly scheduled work hours; provides that the employee shall receive an additional fifteen percent of the overtime payment from the employer for each violation.
STATE OF NEW YORK
________________________________________________________________________
1997--A
2021-2022 Regular Sessions
IN SENATE
January 16, 2021
___________
Introduced by Sens. JACKSON, BIAGGI, BROUK, HOYLMAN, MANNION, RAMOS,
SALAZAR -- read twice and ordered printed, and when printed to be
committed to the Committee on Labor -- recommitted to the Committee on
Labor in accordance with Senate Rule 6, sec. 8 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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 [or], the
16 correction law, or section five hundred four of the executive 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02199-03-2
S. 1997--A 2
1 regarding patient status necessary to ensure patient safety, shall mean
2 those hours a nurse has agreed to work and is normally scheduled to work
3 pursuant to the budgeted hours allocated to the nurse's position by the
4 health care employer; and if no such allocation system exists, some
5 other measure generally used by the health care employer to determine
6 when an employee is minimally supposed to work, consistent with the
7 collective bargaining agreement, if any. Nothing in this section shall
8 be construed to permit an employer to use on-call time as a substitute
9 for mandatory overtime.
10 2. a. Notwithstanding any other provision of law no health care
11 employer shall require a nurse to work more than that nurse's regularly
12 scheduled work hours, except pursuant to subdivision three of this
13 section.
14 b. Nothing in this section shall prohibit a nurse from voluntarily
15 working overtime.
16 3. The limitations provided for in this section shall not apply in the
17 case of:
18 a. a health care disaster, such as a natural or other type of disaster
19 that increases the need for health care personnel, unexpectedly affect-
20 ing the county in which the nurse is employed or in a contiguous county;
21 or
22 b. a federal, state or county declaration of emergency in effect in
23 the county in which the nurse is employed or in a contiguous county; or
24 c. where a health care employer determines there is an emergency,
25 necessary to provide safe patient care, in which case the health care
26 provider shall, before requiring an on-duty employee to remain, make a
27 good faith effort to have overtime covered on a voluntary basis, includ-
28 ing, but not limited to, calling per diems, agency nurses, assigning
29 floats, or requesting an additional day of work from off-duty employees,
30 to the extent such staffing options exist. For the purposes of this
31 paragraph, "emergency", including an unanticipated staffing emergency,
32 is defined as an unforeseen event that could not be prudently planned
33 for by an employer and does not regularly occur; or
34 d. an ongoing medical or surgical procedure in which the nurse is
35 actively engaged and whose continued presence through the completion of
36 the procedure is needed to ensure the health and safety of the patient.
37 4. The provisions of this section are intended as a remedial measure
38 to protect the public health and the quality of patient care, and shall
39 not be construed to diminish or waive any rights of any nurse pursuant
40 to any other law, regulation, or collective bargaining agreement.
41 5. If, after investigation, the commissioner determines that an
42 employer has violated this section, the commissioner shall issue to the
43 employer an order directing compliance therewith, which shall describe
44 particularly the alleged violation. A copy of such order shall be
45 provided to any employee who has filed a complaint and to his or her
46 authorized representative. The commissioner shall assess the employer a
47 civil penalty in an amount not to exceed one thousand dollars for a
48 first violation, two thousand dollars for a second violation, or three
49 thousand dollars for a third or subsequent violation. The employee
50 shall receive an additional fifteen percent of the overtime payment from
51 the employer for each violation as damages.
52 § 2. This act shall take effect on the sixtieth day after it shall
53 have become a law.
