S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10441
 
                           I N  A S S E M B L Y
 
                              April 23, 2018
                                ___________
 
 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
 
   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,  THE  SOCIAL
 SERVICES 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 pre-scheduled on-call
 time and the time spent for the purpose of communicating  shift  reports
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD11573-01-7

 A. 10441                            2
 
 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  OF NOT LESS THAN ONE THOUSAND NOR MORE THAN TEN THOUSAND
 DOLLARS, PER 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.