S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8940
 
                           I N  A S S E M B L Y
 
                             January 30, 2024
                                ___________
 
 Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
   tee 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 by chapter 815 of the laws of 2022 and
 paragraph c of subdivision 3 and subdivision 5 as amended by chapter  27
 of the laws of 2023, 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. For the purposes of  this  para-
 graph,  "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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06876-02-4
 A. 8940                             2
 
   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. Oversight of the use of mandatory overtime during an  emergen-
 cy.  a.    The  commissioner,  in  consultation with the commissioner of
 health, shall have the authority to promulgate any regulations necessary
 to carry out the provisions of this section.
   b. Any health care employer that utilizes an exception to the  limita-
 tion  on  mandatory  overtime  provisions as provided for in subdivision
 three of this section shall notify the department when  such  provisions
 are  in  use. If a health care employer has utilized the mandatory over-
 time provisions as provided for in this section for fifteen days or more
 in a given month, the employer shall report to the  department  and  the
 department  of  health:  (i)  the  number of days mandatory overtime was
 required; (ii) the number of employees that were required to  remain  on
 duty  in  overtime status; and (iii) the dates and times mandatory over-
 time was required. If a health  care  employer  has  utilized  mandatory
 overtime  provisions  under  this section for forty-five days or more in
 any consecutive three month period the health care employer  shall  file
 with  the department and the department of health an explanation for why
 mandatory overtime was required and provide  an  estimate  of  when  the
 employer intends to cease the use of mandatory overtime.
   c.  The  department  shall establish an enforcement officer to oversee
 investigations into any complaints of violations of this section.
   d. The health care employer shall, before utilizing mandatory overtime
 provisions and requiring an on-duty employee  to  remain,  make  a  good
 faith  effort  to have overtime covered on a voluntary basis, including,
 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. Failure to engage in  a  good  faith
 effort  pursuant  to this section shall be a violation. Any employee who
 has been required to work in  violation  of  this  section  may  file  a
 complaint  with  the  enforcement  officer  alleging such violation. Any
 complaint made pursuant to this paragraph must be made in good faith.
   § 2. This act shall take effect immediately.