Changes to Labor Law Regarding Nurse Overtime Prohibition Now in Effect

Amendments to the NYS Labor Law took effect on June 28, 2023, increasing penalties and imposing reporting requirements in relation to mandatory nurse overtime in Article 28 facilities and certain other facilities. As LeadingAge NY reported in January, the new law seeks to provide stronger oversight of the use of mandatory overtime and expands the applicability of the “good faith efforts” that health care employers must make to meet staffing needs before using mandatory overtime under exceptions to the general prohibition. The effective date for the expansion of the good faith efforts requirement was March 30, 2023.

As previously reported, LeadingAge NY advocated for a veto of the underlying legislation and two related bills, one of which would have extended the prohibition to home care agencies. The recent amendments were the outcome of advocacy by our association and others and eliminated several of the most challenging provisions.

Applicability

The law applies to “health care employers,” defined to include, among others, facilities licensed under Article 28 of the Public Health Law, including hospitals, nursing homes, adult day health care (ADHC) programs, diagnostic and treatment centers, and state-operated facilities licensed under various state laws. “Nurses” are defined as registered nurses (RNs) and licensed practical nurses (LPNs).

Restrictions on Nurse Mandatory Overtime and Exceptions

Existing labor law, prior to the recent amendments, prohibits “health care employers” from requiring nurses to work beyond their regularly scheduled hours, except for under the conditions outlined below:

• A health care disaster that increases the need for health care personnel;
• A federal, state, or county declaration of emergency;
• An unforeseen emergency, and it is necessary to provide safe patient care that could not be prudently planned for by the employer and does not regularly occur; or
• An ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence is needed to ensure the health and safety of the patient.

The law does not prohibit nurses from voluntarily working overtime.

What Does 'Regularly Scheduled Hours' Mean?

Regularly scheduled work hours is defined in statute below:

"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 has agreed to work and is normally scheduled to work pursuant to the budgeted hours 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.

So What Is New?

The modifications to the law, newly effective, expand the definition of employers that fall under these requirements, expand the circumstances in which good faith efforts are required to prevent the need for mandatory overtime, create reporting requirements, require the display of a poster informing nurses of the requirements and the ability to file a complaint, establish monetary penalties, and create an enforcement mechanism.

Expanded Definition of Health Care Employers

In addition to the above definition of health care employers, facilities operated or licensed by the Office of Children and Family Services (OCFS) are included.

Good Faith Effort to Avoid Use of Limited Exceptions for Mandated Overtime

Before using mandatory overtime, the employer is required to make a good faith effort to have overtime covered on a voluntary basis, including, but not limited to, calling per diems or agency nurses, assigning floats, or requesting an additional day of work from off-duty employees, to the extent such staffing options exist. Failure to utilize and demonstrate these good faith efforts is a violation.

According to Frequently Asked Questions (FAQs) issued by the Department of Labor (DOL), before requiring an on-duty nurse to work beyond his or her regularly scheduled work hours to address a patient care emergency, the health care employer must make a good faith effort to have overtime covered on a voluntary basis. Specifically, the employer must use all methods listed in its Nurse Coverage Plan and document attempts to secure nurse coverage, including use of phone logs and other records appropriate to this purpose. An employer cannot deem a situation a patient care emergency if it is the result of routine nurse staffing needs due to typical staffing patterns, typical levels of staff absenteeism, or time off typically approved by the employer for vacation, holidays, sick leave, and personal leave.

Health care employers are required to make their Nurse Coverage Plan readily available to all nursing staff by:

• posting/placing the Plan in a location accessible to nursing staff; and
• any means available to make it accessible to nursing staff (e.g., electronic posting on the employer’s internal website).

The employer also must provide the Plan to any collective bargaining representative representing nurses at the health care facility, and to the Commissioner of Labor, or his or her designee, upon request.

Reporting Requirements

A reporting procedure has been established for health care employers who utilize the exceptions to the limitations on mandatory overtime. Employers that use the outlined exceptions must notify DOL when these exceptions are in use.

• If these exceptions are used for 15 days or more in a given month, the employer shall report to the Department of Health (DOH) and DOL the number of days of mandatory overtime that were required, the number of employees who were required to work overtime, and the dates it was required.
• If using these exceptions for 45 days or more in any consecutive three-month period, the employer shall file with DOH and DOL an explanation for why the mandatory overtime was required and provide an estimate of when the employer intends to cease the use of mandatory overtime.

It is unclear at this time how to file a report; LeadingAge NY has reached out to DOL and DOH for more information and will share with members what we learn.

Penalties

The law now allows the imposition of civil penalties in the event of a violation of up to $1,000. Subsequent violations made within 12 months of an initial violation would be subject to a civil penalty of up to $2,000 or $3,000. A penalty of up to $500 can be imposed for a violation of the reporting requirements. Penalties are permissive, not mandatory.

It appears that enforcement will be triggered by complaints.

Display of Poster

All health care employers subject to this law are required to display a poster containing information for employees on how to file a complaint with DOL if they believe there has been a violation of this law. The poster must be displayed in a place that can be easily seen and is accessible to employees in the workplace. An English-language version of the poster is available here, and a Spanish-language version is here.

Enforcement

DOL has appointed Jeanette Lazelle, Deputy Commissioner for Worker Protection, as Enforcement Officer to investigate claims of violations.

More Information and Resources

This DOL webpage has more information on these requirements. Click here to access FAQs issued by DOL. The DOL webpage indicates that you may contact DOL’s Enforcement Officer or their representatives at 888-4-NYSDOL or 518-457-9000.

The law does allow for the promulgation of regulations to implement these requirements.

We will keep members apprised of any new information regarding this requirement, such as how to file necessary reports.

Conclusion

Given the current staffing crisis, as well as the minimum nurse staffing requirements for nursing homes, LeadingAge NY worked to fight off additional burdensome requirements for our members. LeadingAge NY actively opposed three different overtime bills that were passed by the Legislature in 2022. Ultimately, we were successful in fighting off two of the three bills that would have imposed even more onerous, expansive, and conflicting requirements. LeadingAge NY was also successful in getting further modifications to the bill that was ultimately signed by the Governor, implementing the changes outlined above. For example, the final legislation reflects our recommendation to eliminate language that had granted the ability for the employee to receive an additional 15 percent of the overtime payment from the employer for each violation as damages. Had this language been kept in, it would have created a disincentive for nurses to volunteer for overtime.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828