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: A8874B
SPONSOR: Joyner 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 amend subdivisions 3 and 4 of section 167 of the labor
law to 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 1: Amends subdivisions 3 and 4 of section 167 of the labor law,
as added by chapter 493 of the laws of 2008 to reinstate the limitations
on mandatory overtime at three consecutive days after a disaster or
thirty consecutive days after a declared emergency. A staffing emergency
does not include routine nurse staffing needs and the department may
give an employer a civil penalty between one thousand and ten thousand
dollars per violation when the nurse is required to work more than their
scheduled work hours.
Section 2 lists 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.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
A-print amendment clarifies that nothing in the power of the governor to
suspend such mandatory federal, state, or local county deceleration is
penalties to scale by number of violations.subdivision shall limit the
overtime limits while a in effect, and modifies the B-print amendment
makes technical changes.
PRIOR LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
8874--B
IN ASSEMBLY
January 19, 2022
___________
Introduced by M. of A. JOYNER, OTIS, DARLING -- read once and referred
to the Committee on Labor -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
again reported from said committee with amendments, ordered reprinted
as amended and recommitted to said committee
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 and 4 of section 167 of the labor law, as
2 added by chapter 493 of the laws of 2008, are amended to read as
3 follows:
4 3. The limitations provided for in this section shall not apply in the
5 case of:
6 a. a health care disaster, such as a natural or other type of disaster
7 that increases the need for health care personnel, unexpectedly affect-
8 ing the county in which the nurse is employed or in a contiguous county.
9 The limitations on mandatory overtime shall be reinstated at the end of
10 the health care disaster and shall not exceed three consecutive days; or
11 b. a federal, state or county declaration of emergency in effect in
12 the county in which the nurse is employed or in a contiguous county. The
13 limitations on mandatory overtime shall be reinstated at the end of the
14 declared emergency or after thirty consecutive days, whichever is short-
15 er, provided that, pursuant to section twenty-nine-a of the executive
16 law, nothing in this subdivision shall limit the power of the governor
17 to suspend the provisions of this subdivision while a federal, state, or
18 county declaration of emergency is in effect; or
19 c. where a health care employer determines there is an emergency,
20 necessary to provide safe patient care, in which case the health care
21 provider shall, before requiring an on-duty employee to remain, make a
22 good faith effort to have overtime covered on a voluntary basis, includ-
23 ing, but not limited to, calling per diems, agency nurses, assigning
24 floats, or requesting an additional day of work from off-duty employees,
25 to the extent such staffing options exist. For the purposes of this
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14110-06-2
A. 8874--B 2
1 paragraph, "emergency", including an unanticipated staffing emergency,
2 is defined as an unforeseen event that could not be prudently planned
3 for by an employer [and], does not regularly occur, and does not include
4 routine nurse staffing needs that arose due to typical staffing
5 patterns, typical levels of absenteeism, and time off typically approved
6 by the employer for vacations, holidays, sick leave, and personal leave;
7 or
8 d. an ongoing medical or surgical procedure in which the nurse is
9 actively engaged and whose continued presence through the completion of
10 the procedure is needed to ensure the health and safety of the patient.
11 4. The department shall assess an employer a civil penalty of not more
12 than one thousand dollars for a first violation, no more than two thou-
13 sand five hundred dollars for a second violation within three years, and
14 no more than five thousand dollars for a third or subsequent violation
15 within three years where an employer requires a nurse to work more than
16 such nurse's regularly scheduled work hours; provided, further, that the
17 employee shall receive an additional fifteen percent of the overtime
18 payment from the employer for each violation.
19 5. The provisions of this section are intended as a remedial measure
20 to protect the public health and the quality of patient care, and shall
21 not be construed to diminish or waive any rights of any nurse pursuant
22 to any other law, regulation, or collective bargaining agreement.
23 § 2. This act shall take effect immediately.
