September 11, 2008 New Legislation on Mandatory Overtime for Nurses
KEEPING YOU INFORMED…
On August 13, 2008, Governor Paterson signed into law a statute that bans mandatory overtime for nurses who work in hospitals and other health care facilities and schools. “Mandatory overtime” includes any hours beyond a nurse’s normally scheduled shift, which includes pre-scheduled on-call time and/or time spent communicating shift reports on patient status. The law goes into effect on July 1, 2009.
Covered Employers
The statute applies to any employer which provides health care services in facilities including, but not limited to, a hospital, nursing home, mental hospital, educational facility (school districts and BOCES) and/or correctional facility. It does not apply to voluntary providers which are licensed or certified by the Office of Mental Health, the Office of Mental Retardation and Developmental Disabilities or the Office of Alcoholism and Substance Abuse Services.
Covered Employees
The law applies to registered professional nurses and licensed practical nurses who provide “direct patient care.” The phrase “direct patient care” is not defined in the law nor is it defined by any other New York statute, regulation or court. It is our opinion that “direct patient care” includes the examination, diagnosis, monitoring and treatment of patients. A nurse who, for example, is solely engaged in research projects would likely not he covered by the law.
Exceptions
An employer may require a nurse to work overtime under any of the following circumstances:
(1) There is a health care disaster; & a natural disaster, that increases the need for health care personnel in the county in which the nurse works or a contiguous county;
(2) A federal, state or county emergency is declared in the county in which the nurse works or a contiguous county;
(3) The employer determines that there is an emergency and mandatory overtime is necessary to provide safe patient care. An emergency includes an unanticipated staffing shortage for which the employer could not prudently plan and which does not regularly occur. Before mandating overtime, the employer must make a good faith effort to arrange for volunteers, call in per diem or agency nurses, assign floating employees and/or request off-duty employees to work;
(4) The nurse is actively engaged in an ongoing medical or surgical procedure and his/her continued presence through its completion is necessary to ensure the health and safety of the patient; or
(5) The nurse volunteers to work overtime
A nurse who refuses to accept an overtime assignment will not be deemed to have engaged in patient abandonment or neglect unless one or more of the circumstances described above in paragraphs one through four apply.
Impact on Collective Bargaining Agreements
The legislation does not diminish or waive any rights a nurse has pursuant to law, regulation or collective bargaining agreement. Thus, an employer remains obligated, for example, to comply with applicable contract provisions on equitable distribution of overtime as well as laws governing the transfer of work to non-union employees.
Conclusion
The Legislature intended that this statute redress the nursing shortages across the State by offering improved working conditions to attract more nurses. Even though the cost of hiring new nurses may be partially offset by the decrease in overtime costs, the Legislature and Governor have recognized that this legislation could prove to be costly. Since the statute goes into effect on July 1, 2009, it is essential that you begin to formulate a plan to implement this new law.
Please contact us if you have any questions about this memorandum or require any assistance with implementing these requirements.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP, 2008