Assembly Bill A8354

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8354
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               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:

   Section  1.  Section  167 of the labor law, as added by chapter 493 of
 the laws of 2008, is amended to read as follows:
   § 167. Restrictions on consecutive hours of work for nurses.  1.  When
 used in this section:
   a.  "Health  care  employer"  shall  mean any individual, partnership,
 association, corporation, limited liability company  or  any  person  or
 group  of  persons  acting directly or indirectly on behalf of or in the
 interest of the employer, which provides health care services (i)  in  a
 facility  licensed  or  operated pursuant to article twenty-eight of the
 public health law, including any facility operated by the state, a poli-
 tical subdivision or a public corporation as defined by  section  sixty-
 six  of  the general construction law, or (ii) in a facility operated by
 the state, a political subdivision or a public corporation as defined by
 section sixty-six of the general construction law, operated or  licensed
 pursuant  to  the  mental  hygiene  law,  the  education law, THE SOCIAL
 SERVICES LAW or the correction law.
   b. "Nurse" shall mean a registered professional nurse  or  a  licensed
 practical  nurse  as  defined  by article one hundred thirty-nine of the
 education law who provides direct patient care.
   c. "Regularly scheduled work hours", including  pre-scheduled  on-call
 time  and  the time spent for the purpose of communicating shift reports
 regarding patient status necessary to ensure patient safety, shall  mean
 those hours a nurse has agreed to work and is normally scheduled to work
 pursuant  to the budgeted hours allocated to the nurse's position by the
 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.
              

                                                            LBD11550-01-7

 A. 8354                             2
 
 other  measure  generally  used by the health care employer to determine
 when an employee is minimally supposed  to  work,  consistent  with  the
 collective  bargaining  agreement, if any. Nothing in this section shall
 be  construed  to permit an employer to use on-call time as a substitute
 for mandatory overtime.
   2. a. Notwithstanding any  other  provision  of  law  no  health  care
 employer  shall require a nurse to work more than that nurse's regularly
 scheduled work hours, except  pursuant  to  subdivision  three  of  this
 section.
   b.  Nothing  in  this  section shall prohibit a nurse from voluntarily
 working overtime.
   3. The limitations provided for in this section shall not apply in the
 case of:
   a. a health care disaster, such as a natural or other type of disaster
 that increases the need for health care personnel, unexpectedly  affect-
 ing the county in which the nurse is employed or in a contiguous county;
 or
   b.  a  federal,  state or county declaration of emergency in effect in
 the county in which the nurse is employed or in a contiguous county; or
   c. where a health care employer  determines  there  is  an  emergency,
 necessary  to  provide  safe patient care, in which case the health care
 provider shall, before requiring an on-duty employee to remain,  make  a
 good faith effort to have overtime covered on a voluntary basis, includ-
 ing,  but  not  limited  to, calling per diems, agency nurses, assigning
 floats, or requesting an additional day of work from off-duty employees,
 to the extent such staffing options exist.  For  the  purposes  of  this
 paragraph,  "emergency",  including an unanticipated staffing emergency,
 is defined as an unforeseen event that could not  be  prudently  planned
 for by an employer and does not regularly occur; or
   d.  an  ongoing  medical  or  surgical procedure in which the nurse is
 actively engaged and whose continued presence through the completion  of
 the procedure is needed to ensure the health and safety of the patient.
   4.  The  provisions of this section are intended as a remedial measure
 to protect the public health and the quality of patient care, and  shall
 not  be  construed to diminish or waive any rights of any nurse pursuant
 to any other law, regulation, or collective bargaining agreement.
   5. IF,  AFTER  INVESTIGATION,  THE  COMMISSIONER  DETERMINES  THAT  AN
 EMPLOYER  HAS VIOLATED THIS SECTION, THE COMMISSIONER SHALL ISSUE TO THE
 EMPLOYER AN ORDER DIRECTING COMPLIANCE THEREWITH, WHICH  SHALL  DESCRIBE
 PARTICULARLY  THE  ALLEGED  VIOLATION.  A  COPY  OF  SUCH ORDER SHALL BE
 PROVIDED TO ANY EMPLOYEE WHO HAS FILED A COMPLAINT AND  TO  HIS  OR  HER
 AUTHORIZED  REPRESENTATIVE. THE COMMISSIONER SHALL ASSESS THE EMPLOYER A
 CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND NOR MORE THAN  TEN  THOUSAND
 DOLLARS, PER VIOLATION. THE EMPLOYEE SHALL RECEIVE AN ADDITIONAL FIFTEEN
 PERCENT  OF THE OVERTIME PAYMENT FROM THE EMPLOYER FOR EACH VIOLATION AS
 DAMAGES.
   § 2. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.