S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    136
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced by M. of A. GUNTHER, ABINANTI, STECK, COLTON, L. ROSENTHAL --
   read once and referred to the Committee on Labor
 
 AN  ACT  to  amend the labor law, in relation to restrictions on consec-
   utive hours of work for non-nursing direct-care staff

   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 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. "NON-NURSING DIRECT-CARE STAFF" SHALL MEAN ANY EMPLOYEE WHO IS  NOT
 A  NURSE  OR  OTHER PERSON LICENSED, CERTIFIED OR REGISTERED UNDER TITLE
 EIGHT OF THE EDUCATION LAW WHOSE PRINCIPAL RESPONSIBILITY  IS  TO  CARRY
 OUT  DIRECT  PATIENT  CARE  FOR  ONE  OR MORE PATIENTS OR PROVIDE DIRECT
 ASSISTANCE IN THE DELIVERY OF PATIENT CARE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02719-01-1

 A. 136                              2
 
   D. "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 OR NON-NURSING DIRECT-CARE STAFF has agreed to work
 and  is  normally scheduled to work pursuant to the budgeted hours allo-
 cated 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 OR NON-NURSING DIRECT-CARE STAFF to work
 more than that nurse's  OR  NON-NURSING  DIRECT-CARE  STAFF'S  regularly
 scheduled  work  hours,  except  pursuant  to  subdivision three of this
 section.
   b. Nothing in this section  shall  prohibit  a  nurse  OR  NON-NURSING
 DIRECT-CARE STAFF 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 or non-nursing [direct  care]  DIRECT-
 CARE staff 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 or non-nursing [direct  care]  DIRECT-CARE
 staff 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  OR  NON-
 NURSING  DIRECT-CARE  STAFF  pursuant  to  any other law, regulation, or
 collective bargaining agreement.
   § 2. This act shall take effect immediately.