S T A T E O F N E W Y O R K
________________________________________________________________________
3729
2019-2020 Regular Sessions
I N A S S E M B L Y
January 30, 2019
___________
Introduced by M. of A. GUNTHER, ABINANTI, JAFFEE, STECK, COLTON,
L. ROSENTHAL -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to restrictions on consec-
utive hours of work for non-nursing direct-care staff
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 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. "NON-NURSING DIRECT-CARE STAFF" SHALL MEAN ANY EMPLOYEE WHO IS NOT
A NURSE OR OTHER PERSON LICENSED, CERTIFIED OR REGISTERED UNDER TITLE
EIGHT OF THE EDUCATION LAW WHOSE PRINCIPAL RESPONSIBILITY IS TO CARRY
OUT DIRECT PATIENT CARE FOR ONE OR MORE PATIENTS OR PROVIDE DIRECT
ASSISTANCE IN THE DELIVERY OF PATIENT CARE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01102-01-9
A. 3729 2
D. "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 OR NON-NURSING DIRECT-CARE STAFF has agreed to work
and is normally scheduled to work pursuant to the budgeted hours allo-
cated 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 OR NON-NURSING DIRECT-CARE STAFF to work
more than that nurse's OR NON-NURSING DIRECT-CARE STAFF'S regularly
scheduled work hours, except pursuant to subdivision three of this
section.
b. Nothing in this section shall prohibit a nurse OR NON-NURSING
DIRECT-CARE STAFF 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 or non-nursing [direct care] DIRECT-
CARE staff 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 or non-nursing [direct care] DIRECT-CARE
staff 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 OR NON-
NURSING DIRECT-CARE STAFF pursuant to any other law, regulation, or
collective bargaining agreement.
§ 2. This act shall take effect immediately.