Assembly Bill A2057

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2057
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 23, 2023
                                ___________
 
 Introduced by M. of A. JOYNER -- 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 nurses
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Subdivisions  3, 4 and 5 of section 167 of the labor law,
 subdivisions 3 and 4 as amended and subdivision 5 as  added  by  chapter
 815 of the laws of 2022, are amended to read as follows:
   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.
 THE LIMITATIONS ON MANDATORY OVERTIME SHALL BE REINSTATED AT THE END  OF
 THE HEALTH CARE DISASTER AND SHALL NOT EXCEED THREE CONSECUTIVE DAYS; 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. THE
 LIMITATIONS ON MANDATORY OVERTIME SHALL BE REINSTATED AT THE END OF  THE
 DECLARED EMERGENCY OR AFTER THIRTY CONSECUTIVE DAYS, WHICHEVER IS SHORT-
 ER,  PROVIDED  THAT,  PURSUANT TO SECTION TWENTY-NINE-A OF THE EXECUTIVE
 LAW, NOTHING IN THIS SUBDIVISION SHALL LIMIT THE POWER OF  THE  GOVERNOR
 TO SUSPEND THE PROVISIONS OF THIS SUBDIVISION WHILE A FEDERAL, STATE, OR
 COUNTY DECLARATION OF EMERGENCY IS IN EFFECT; 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06876-01-3
              

 A. 2057                             2
 
 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, AND DOES NOT INCLUDE
 ROUTINE  NURSE  STAFFING  NEEDS  THAT  AROSE  DUE  TO  TYPICAL  STAFFING
 PATTERNS, TYPICAL LEVELS OF ABSENTEEISM, AND TIME OFF TYPICALLY APPROVED
 BY THE EMPLOYER FOR VACATIONS, HOLIDAYS, SICK LEAVE, AND PERSONAL LEAVE;
 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 DEPARTMENT SHALL ASSESS AN EMPLOYER A CIVIL PENALTY OF NOT MORE
 THAN ONE THOUSAND DOLLARS FOR A FIRST VIOLATION, NO MORE THAN TWO  THOU-
 SAND FIVE HUNDRED DOLLARS FOR A SECOND VIOLATION WITHIN THREE YEARS, AND
 NO  MORE  THAN FIVE THOUSAND DOLLARS FOR A THIRD OR SUBSEQUENT VIOLATION
 WITHIN THREE YEARS WHERE AN EMPLOYER REQUIRES A NURSE TO WORK MORE  THAN
 SUCH NURSE'S REGULARLY SCHEDULED WORK HOURS; PROVIDED, FURTHER, THAT THE
 EMPLOYEE  SHALL  RECEIVE  AN  ADDITIONAL FIFTEEN PERCENT OF THE OVERTIME
 PAYMENT FROM THE EMPLOYER FOR EACH VIOLATION.
   5. 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.]  6.  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 immediately.