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A08354 Summary:

Amd 167, Lab L
Relates to the restrictions on consecutive hours of work for nurses; includes facilities operated under the social services law in the definition of health care employer; adds penalties against employers.
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A08354 Actions:

06/12/2017referred to labor
01/03/2018referred to labor
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A08354 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  TITLE OF BILL: An act to amend the labor law, in relation to the restrictions on consecutive hours of work for nurses   PURPOSE: This bill would expand the definition of "health care employer" to include facilities operated under the social services law for the purposes of prohibiting mandatory overtime. It would also put in place penalties for employers who violate this section of law.   SUMMARY OF PROVISIONS: Section 1. Amends section 167 of the labor law to include facilities operated under the social services law to the definition of "health care employer." This would cover facilities operated by the Office of Chil- dren and Family Services (OCFS). It would also add financial penalties against employers who violates this section of law relating to forced overtime. Section 2. Effective date.   JUSTIFICATION: In 2008, the Legislature passed the "no mandatory overtime" law. Howev- er, in the last decade the law has frequently been violated, with no repercussions. This bill would include some much needed enforcement language requiring financial penalties for employers who violate the law. The original law also left out some nurses, including those who work for the Office of Children and Family Services (OCFS). This bill would correct that shortcoming.   LEGISLATIVE HISTORY: New bill for 2017 session.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: On the sixtieth day after it shall have become a law.
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A08354 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                      June 12, 2017
        Introduced by M. of A. ABBATE -- 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
    25  health care employer; and if no  such  allocation  system  exists,  some

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8354                             2
     1  other  measure  generally  used by the health care employer to determine
     2  when an employee is minimally supposed  to  work,  consistent  with  the
     3  collective  bargaining  agreement, if any. Nothing in this section shall
     4  be  construed  to permit an employer to use on-call time as a substitute
     5  for mandatory overtime.
     6    2. a. Notwithstanding any  other  provision  of  law  no  health  care
     7  employer  shall require a nurse to work more than that nurse's regularly
     8  scheduled work hours, except  pursuant  to  subdivision  three  of  this
     9  section.
    10    b.  Nothing  in  this  section shall prohibit a nurse from voluntarily
    11  working overtime.
    12    3. The limitations provided for in this section shall not apply in the
    13  case of:
    14    a. a health care disaster, such as a natural or other type of disaster
    15  that increases the need for health care personnel, unexpectedly  affect-
    16  ing the county in which the nurse is employed or in a contiguous county;
    17  or
    18    b.  a  federal,  state or county declaration of emergency in effect in
    19  the county in which the nurse is employed or in a contiguous county; or
    20    c. where a health care employer  determines  there  is  an  emergency,
    21  necessary  to  provide  safe patient care, in which case the health care
    22  provider shall, before requiring an on-duty employee to remain,  make  a
    23  good faith effort to have overtime covered on a voluntary basis, includ-
    24  ing,  but  not  limited  to, calling per diems, agency nurses, assigning
    25  floats, or requesting an additional day of work from off-duty employees,
    26  to the extent such staffing options exist.  For  the  purposes  of  this
    27  paragraph,  "emergency",  including an unanticipated staffing emergency,
    28  is defined as an unforeseen event that could not  be  prudently  planned
    29  for by an employer and does not regularly occur; or
    30    d.  an  ongoing  medical  or  surgical procedure in which the nurse is
    31  actively engaged and whose continued presence through the completion  of
    32  the procedure is needed to ensure the health and safety of the patient.
    33    4.  The  provisions of this section are intended as a remedial measure
    34  to protect the public health and the quality of patient care, and  shall
    35  not  be  construed to diminish or waive any rights of any nurse pursuant
    36  to any other law, regulation, or collective bargaining agreement.
    37    5. If,  after  investigation,  the  commissioner  determines  that  an
    38  employer  has violated this section, the commissioner shall issue to the
    39  employer an order directing compliance therewith, which  shall  describe
    40  particularly  the  alleged  violation.  A  copy  of  such order shall be
    41  provided to any employee who has filed a complaint and  to  his  or  her
    42  authorized  representative. The commissioner shall assess the employer a
    43  civil penalty of not less than one thousand nor more than  ten  thousand
    44  dollars, per violation. The employee shall receive an additional fifteen
    45  percent  of the overtime payment from the employer for each violation as
    46  damages.
    47    § 2. This act shall take effect on the sixtieth  day  after  it  shall
    48  have become a law.
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