S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    876
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2017
                                ___________
 
 Introduced  by  M.  of  A.  GUNTHER, COLTON, JAFFEE, PERRY, ENGLEBRIGHT,
   STECK, COOK, ABINANTI -- Multi-Sponsored by -- M. of A. FARRELL, GOTT-
   FRIED, HEVESI, McDONOUGH, RA -- read once and referred to the  Commit-
   tee on Labor
 
 AN  ACT to amend the labor law and the education law, in relation to the
   hours worked by 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 AND ARTI-
 CLE THIRTY-SIX of the public health law, including any facility operated
 by the state, a political 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 educa-
 tion 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  REGULARLY  SCHEDULED
 HOME  CARE VISITS, pre-scheduled on-call time and the time spent for the
 purpose of communicating shift reports regarding patient  status  neces-
 sary  to  ensure  patient  safety,  shall mean those hours AND HOME CARE

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

                                                            LBD02981-01-7

 A. 876                              2
 
 VISITS a nurse has agreed to work and  is  normally  scheduled  to  work
 pursuant  to  the  budgeted  hours AND HOME CARE VISITS allocated to the
 nurse's position by the health care employer; and if no such  allocation
 system  exists,  some  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 OR HOME CARE VISITS, 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.
   3-A.  IN THE CASE OF A NURSE EMPLOYED BY AN EMPLOYER LICENSED PURSUANT
 TO ARTICLE THIRTY-SIX OF THE PUBLIC HEALTH  LAW,  THE  TERM  'EMERGENCY'
 SHALL ALSO INCLUDE A SITUATION IN WHICH UNFORESEEN EVENTS MAKE IT NECES-
 SARY  FOR AN EMPLOYER TO REQUIRE A NURSE TO COMPLETE REGULARLY SCHEDULED
 HOME CARE VISITS IN CIRCUMSTANCES WHERE THE LOCATION  OF  THE  PRE-SCHE-
 DULED  VISITS  AND  LACK  OF OTHER STAFFING OPTIONS FOR COVERAGE MAKE IT
 IMPRACTICAL TO RESCHEDULE THE VISIT OR TO PROVIDE ALTERNATIVE COVERAGE.
   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.
   §  2.  Section 6510-e of the education law, as added by chapter 493 of
 the laws of 2008, is amended to read as follows:
   § 6510-e. Nurses' refusal of overtime work. The refusal of a  licensed
 practical  nurse  or a registered professional nurse to work beyond said
 nurse's regularly scheduled HOME CARE VISITS OR hours of work shall  not
 solely  constitute  patient  abandonment  or  neglect  except  under the
 circumstances provided  for  under  subdivision  three  of  section  one
 hundred sixty-seven of the labor law.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.