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

                                  1673

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law and the education law, in relation to  the
  hours worked by 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:
  S  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 AND ARTI-
CLE THIRTY-SIX of the public health law, including any facility operated
by the state, a political 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 educa-
tion 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 REGULARLY SCHEDULED
HOME CARE VISITS, pre-scheduled on-call time and the time spent for  the
purpose  of  communicating shift reports regarding patient status neces-
sary to ensure patient safety, shall mean  those  hours  AND  HOME  CARE
VISITS  a  nurse  has  agreed  to work and is normally scheduled to work

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

                                                           LBD02370-01-3

S. 1673                             2

pursuant to the budgeted hours AND HOME CARE  VISITS  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 OR HOME CARE VISITS, 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.
  3-A. IN THE CASE OF A NURSE EMPLOYED BY AN EMPLOYER LICENSED  PURSUANT
TO  ARTICLE  THIRTY-SIX  OF  THE PUBLIC HEALTH LAW, THE TERM 'EMERGENCY'
SHALL ALSO INCLUDE A SITUATION IN WHICH UNFORESEEN EVENTS MAKE IT NECES-
SARY FOR AN EMPLOYER TO REQUIRE A NURSE TO COMPLETE REGULARLY  SCHEDULED
HOME  CARE  VISITS  IN CIRCUMSTANCES WHERE THE LOCATION OF THE PRE-SCHE-
DULED VISITS AND LACK OF OTHER STAFFING OPTIONS  FOR  COVERAGE  MAKE  IT
IMPRACTICAL TO RESCHEDULE THE VISIT OR TO PROVIDE ALTERNATIVE COVERAGE.
  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.
  S 2. Section 6510-e of the education law, as added by chapter  493  of
the laws of 2008, is amended to read as follows:
  S  6510-e. Nurses' refusal of overtime work. The refusal of a licensed
practical nurse or a registered professional nurse to work  beyond  said
nurse's  regularly scheduled HOME CARE VISITS OR hours of work shall not
solely constitute  patient  abandonment  or  neglect  except  under  the
circumstances  provided  for  under  subdivision  three  of  section one
hundred sixty-seven of the labor law.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.