S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3756
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GUNTHER, COLTON, JAFFEE, PERRY, ENGLEBRIGHT,
   STECK, COOK, ABINANTI, ORTIZ -- Multi-Sponsored by -- M. of  A.  GOTT-
   FRIED,  HEVESI, McDONOUGH, RA -- read once and referred to the Commit-
   tee 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:
   §  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

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

                                                            LBD01379-01-9

 A. 3756                             2
 
 VISITS  a  nurse  has  agreed  to work and is normally scheduled to work
 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.
   §  2.  Section 6510-e of the education law, as added by chapter 493 of
 the laws of 2008, is amended to read as follows:
   § 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.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.