Bill Text: NY A03756 | 2019-2020 | General Assembly | Introduced


Bill Title: Restricts the consecutive hours of required work by nurses in the home care setting except in emergencies; does not prohibit a nurse from voluntarily working overtime.

Spectrum: Moderate Partisan Bill (Democrat 12-2)

Status: (Introduced) 2019-01-31 - referred to labor [A03756 Detail]

Download: New_York-2019-A03756-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          3756
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    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:
     1    Section 1. Section 167 of the labor law, as added by  chapter  493  of
     2  the laws of 2008, is amended to read as follows:
     3    §  167.  Restrictions on consecutive hours of work for nurses. 1. When
     4  used in this section:
     5    a. "Health care employer"  shall  mean  any  individual,  partnership,
     6  association,  corporation,  limited  liability  company or any person or
     7  group of persons acting directly or indirectly on behalf of  or  in  the
     8  interest  of  the employer, which provides health care services (i) in a
     9  facility licensed or operated pursuant to article twenty-eight and arti-
    10  cle thirty-six of the public health law, including any facility operated
    11  by the state, a political subdivision or a public corporation as defined
    12  by section sixty-six of the general  construction  law,  or  (ii)  in  a
    13  facility  operated  by  the  state,  a political subdivision or a public
    14  corporation as defined by section sixty-six of the general  construction
    15  law, operated or licensed pursuant to the mental hygiene law, the educa-
    16  tion law or the correction law.
    17    b.  "Nurse"  shall  mean a registered professional nurse or a licensed
    18  practical nurse as defined by article one  hundred  thirty-nine  of  the
    19  education law who provides direct patient care.
    20    c.  "Regularly  scheduled  work  hours", including regularly scheduled
    21  home care visits, pre-scheduled on-call time and the time spent for  the
    22  purpose  of  communicating shift reports regarding patient status neces-
    23  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
     1  visits  a  nurse  has  agreed  to work and is normally scheduled to work
     2  pursuant to the budgeted hours and home care  visits  allocated  to  the
     3  nurse's  position by the health care employer; and if no such allocation
     4  system  exists,  some  other  measure  generally used by the health care
     5  employer to determine when an employee is minimally  supposed  to  work,
     6  consistent  with the collective bargaining agreement, if any. Nothing in
     7  this section shall be construed to permit an  employer  to  use  on-call
     8  time as a substitute for mandatory overtime.
     9    2.  a.  Notwithstanding  any  other  provision  of  law no health care
    10  employer shall require a nurse to work more than that nurse's  regularly
    11  scheduled work hours or home care visits, except pursuant to subdivision
    12  three of this section.
    13    b.  Nothing  in  this  section shall prohibit a nurse from voluntarily
    14  working overtime.
    15    3. The limitations provided for in this section shall not apply in the
    16  case of:
    17    a. a health care disaster, such as a natural or other type of disaster
    18  that increases the need for health care personnel, unexpectedly  affect-
    19  ing the county in which the nurse is employed or in a contiguous county;
    20  or
    21    b.  a  federal,  state or county declaration of emergency in effect in
    22  the county in which the nurse is employed or in a contiguous county; or
    23    c. where a health care employer  determines  there  is  an  emergency,
    24  necessary  to  provide  safe patient care, in which case the health care
    25  provider shall, before requiring an on-duty employee to remain,  make  a
    26  good faith effort to have overtime covered on a voluntary basis, includ-
    27  ing,  but  not  limited  to, calling per diems, agency nurses, assigning
    28  floats, or requesting an additional day of work from off-duty employees,
    29  to the extent such staffing options exist.  For  the  purposes  of  this
    30  paragraph,  "emergency",  including an unanticipated staffing emergency,
    31  is defined as an unforeseen event that could not  be  prudently  planned
    32  for by an employer and does not regularly occur; or
    33    d.  an  ongoing  medical  or  surgical procedure in which the nurse is
    34  actively engaged and whose continued presence through the completion  of
    35  the procedure is needed to ensure the health and safety of the patient.
    36    3-a.  In the case of a nurse employed by an employer licensed pursuant
    37  to article thirty-six of the public health  law,  the  term  'emergency'
    38  shall also include a situation in which unforeseen events make it neces-
    39  sary  for an employer to require a nurse to complete regularly scheduled
    40  home care visits in circumstances where the location  of  the  pre-sche-
    41  duled  visits  and  lack  of other staffing options for coverage make it
    42  impractical to reschedule the visit or to provide alternative coverage.
    43    4. The provisions of this section are intended as a  remedial  measure
    44  to  protect the public health and the quality of patient care, and shall
    45  not be construed to diminish or waive any rights of any  nurse  pursuant
    46  to any other law, regulation, or collective bargaining agreement.
    47    §  2.  Section 6510-e of the education law, as added by chapter 493 of
    48  the laws of 2008, is amended to read as follows:
    49    § 6510-e. Nurses' refusal of overtime work. The refusal of a  licensed
    50  practical  nurse  or a registered professional nurse to work beyond said
    51  nurse's regularly scheduled home care visits or hours of work shall  not
    52  solely  constitute  patient  abandonment  or  neglect  except  under the
    53  circumstances provided  for  under  subdivision  three  of  section  one
    54  hundred sixty-seven of the labor law.
    55    §  3.  This  act shall take effect on the ninetieth day after it shall
    56  have become a law.
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