Assembly Bill A286

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  286--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced by M. of A. GUNTHER, STECK, JACOBSON, BRAUNSTEIN, CRUZ, RICH-
   ARDSON, HEVESI, ENGLEBRIGHT -- read once and referred to the Committee
   on  Labor  -- recommitted to the Committee on Labor in accordance with
   Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee
 
 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  [or],  the
 correction law, OR SECTION FIVE HUNDRED FOUR OF THE EXECUTIVE 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

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

                                                            LBD02199-02-2
 A. 286--A                           2
 
 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
 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 IN AN AMOUNT NOT TO EXCEED  ONE  THOUSAND  DOLLARS  FOR  A
 FIRST  VIOLATION,  TWO THOUSAND DOLLARS FOR A SECOND VIOLATION, OR THREE
 THOUSAND DOLLARS FOR A THIRD OR  SUBSEQUENT  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.