The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5424

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                             April 30, 2019
                               ___________

Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
  printed to be committed 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.

                                                           LBD01634-01-9

S. 5424                             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.