New York Codes, Rules and Regulations › Title 12 - DEPARTMENT OF LABOR › Chapter II - DIVISION OF LABOR STANDARDS › Subchapter D - Hours Of Labor › Part 177 - Restrictions On Consecutive Hours Of Work For Nurses › Section 177.3 - Mandatory overtime prohibition

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Notwithstanding any other provision of
				  law, a health care employer shall not require a nurse to work overtime. On-call
				  time shall be considered time spent working for purposes of determining whether
				  a health care employer has required a nurse to work overtime. No employer may
				  use on-call time as a substitute for mandatory overtime.
(b) The following exceptions shall apply to
				  the prohibition against mandatory overtime for nurses:
(1) Health care disaster. The prohibition
				  against mandatory overtime shall not apply in the case of a health care
				  disaster, such as a natural or other type of disaster unexpectedly affecting
				  the county in which the nurse is employed or in a contiguous county that
				  increases the need for health care personnel or requires the maintenance of the
				  existing on-duty personnel to maintain staffing levels necessary to provide
				  adequate health care coverage. A determination that a health care disaster
				  exists shall be made by the health care employer and shall be reasonable under
				  the circumstances. Examples of health care disasters within the meaning of this
				  Part include unforeseen events involving multiple serious injuries (e.g.,
				  fires, auto accidents, a building collapse), chemical spills or releases, a
				  widespread outbreak of an illness requiring hospitalization for many
				  individuals in the community served by the health care employer, or the
				  occurrence of a riot, disturbance, or other serious event within an institution
				  which substantially affects or increases the need for health care
				  services.
(2) Government
				  declaration of emergency. The prohibition against mandatory overtime shall not
				  apply in the case of a Federal, State or local declaration of emergency in
				  effect pursuant to State law or applicable Federal law in the county in which
				  the nurse is employed or in a contiguous county.
(3) Patient care emergency. The prohibition
				  against mandatory overtime shall not apply in the case of a patient care
				  emergency, which shall mean a situation that is unforeseen and could not be
				  prudently planned for and, as determined by the health care employer, that
				  requires the continued presence of the nurse to provide safe patient care,
				  subject to the following limitations:
(i)
				  Before requiring an on-duty nurse to work beyond his or her regularly scheduled
				  work hours in connection with a patient care emergency, the health care
				  employer shall make a good faith effort to have overtime covered on a voluntary
				  basis or to otherwise secure nurse coverage by utilizing all methods set forth
				  in its nurse coverage plan required pursuant to section
				  177.4  of
				  this Part. The health care employer shall document attempts to secure nurse
				  coverage through use of phone logs or other records appropriate to this
				  purpose.
(ii) A patient care
				  emergency cannot be established in a particular circumstance if that
				  circumstance is the result of routine nurse staffing needs due to typical
				  staffing patterns, typical levels of absenteeism, and time off typically
				  approved by the employer for vacation, holidays, sick leave, and personal
				  leave, unless a nurse coverage plan which meets the requirements of section
				  177.4  of
				  this Part is in place, has been fully implemented and utilized, and has failed
				  to produce staffing to meet the particular patient care emergency. Nothing is
				  this provision shall be construed to limit an employer's right to deny
				  discretionary time off (e.g., vacation time, personal time, etc.) where the
				  employer is contractually or otherwise legally permitted to do so.
(iii) A patient care emergency will not
				  qualify for an exception to the provisions of this Part if it was caused by the
				  health care employer's failure to develop or properly and fully implement a
				  nurse coverage plan as required under section
				  177.4  of
				  this Part.
(4) Ongoing
				  medical or surgical procedure. The prohibition against mandatory overtime shall
				  not apply in the case of an ongoing medical or surgical procedure in which the
				  nurse is actively engaged and in which the nurse's continued presence through
				  the completion of the procedure is needed to ensure the health and safety of
				  the patient. Determinations with regard to whether the nurse's continued active
				  engagement in the procedure is necessary shall be made by the nursing
				  supervisor or nurse manager supervising such nurse.