S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    970
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
   tee on Labor
 
 AN ACT to amend the labor  law,  in  relation  to  the  restrictions  on
   consecutive  hours  of  work for nurses; and to amend a chapter of the
   laws of 2022 amending the labor law relating to  the  restrictions  on
   consecutive hours of work for nurses, as proposed in legislative bills
   numbers S. 1997-A and A. 286-A, in relation to the effectiveness ther-
   eof
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph c of subdivision 3 and subdivision 5  of  section
 167 of the labor law, as amended by a chapter of the laws of 2022 amend-
 ing  the  labor law relating to the restrictions on consecutive hours of
 work for nurses, as proposed in legislative bills numbers S. 1997-A  and
 A.    286-A,  are  amended  and  a new subdivision 7 is added to read as
 follows:
   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
   5.  OVERSIGHT OF THE USE OF MANDATORY OVERTIME DURING AN EMERGENCY. 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04036-01-3
 A. 970                              2
              

 
   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.
   6.  UPON  RECEIPT  OF A COMPLAINT PURSUANT TO SUBDIVISION FIVE OF THIS
 SECTION, THE ENFORCEMENT OFFICER MAY  CAUSE  SUCH  INVESTIGATION  TO  BE
 MADE, IN CONSULTATION WITH THE DEPARTMENT OF HEALTH AND SHALL NOTIFY THE
 EMPLOYER.  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]  MAY  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 IF
 WITHIN TWELVE MONTHS, or three thousand dollars for a  third  or  subse-
 quent  violation  OF  THIS  SECTION  IF  WITHIN TWELVE MONTHS; PROVIDED,
 HOWEVER, THAT THE DEPARTMENT MAY ASSESS AN EMPLOYER A CIVIL  PENALTY  OF
 NOT  MORE  THAN FIVE HUNDRED DOLLARS FOR ANY VIOLATION OF PARAGRAPH B OF
 SUBDIVISION FIVE OF THIS SECTION.  [The employee shall receive an  addi-
 tional  fifteen  percent  of  the overtime payment from the employer for
 each violation as damages.]
   7. THE DEPARTMENT SHALL DEVELOP AND MAKE AVAILABLE ON  ITS  WEBSITE  A
 POSTER CONTAINING INFORMATION FOR EMPLOYEES ON FILING A COMPLAINT PURSU-
 ANT TO THIS SECTION. EVERY HEALTH CARE EMPLOYER SHALL DISPLAY SUCH POST-
 ER IN A CONSPICUOUS LOCATION ACCESSIBLE TO EMPLOYEES IN THE WORKPLACE.
   § 2. Section 2 of a chapter of the laws of 2022 amending the labor law
 relating to the restrictions on consecutive hours of work for nurses, as
 proposed in legislative bills numbers S. 1997-A and A. 286-A, is amended
 to read as follows:
   §  2.  This act shall take effect on the [sixtieth] ONE HUNDRED EIGHT-
 IETH day after it shall have become a law.
 A. 970                              3
 
   § 3. This act shall take effect immediately;  provided  however,  that
 section  one  of  this  act  shall take effect on the same date and same
 manner as a chapter of the laws of 2022 amending the labor law  relating
 to the restrictions on consecutive hours of work for nurses, as proposed
 in  legislative  bills  numbers  S.  1997-A  and A. 286-A, takes effect;
 provided further, that paragraph d of subdivision 5 of  section  167  of
 the labor law, as added by section one of this act, shall take effect on
 the  ninetieth  day  after  the enactment of such chapter of the laws of
 2022.