NYSDOL Issues Regulations Regarding the Prohibition on Mandatory Overtime for Nurses

August 10, 2009

By: Subhash Viswanathan

The New York State Department of Labor ("NYSDOL") recently issued regulations regarding Labor Law Section 167, which prohibits health care employers from requiring nurses to work more than their regularly scheduled work hours.  The regulations reiterate and explain the provisions of the law, but also impose a requirement (which is not contained in the law) that health care employers establish a written "Nurse Coverage Plan" within 90 days of the regulations' July 15, 2009 effective date.  The NYSDOL has also posted on its web site answers to some frequently asked questions regarding the law and regulations.

The law, which went into effect on July 1, 2009, provides that health care employers may not require registered professional nurses and licensed practical nurses who provide direct patient care to work more than their "regularly scheduled work hours," subject to the following exceptions:

• a health care disaster, such as a natural or other type of disaster that increases the need for health care personnel, unexpectedly affecting the county in which the nurse is employed or a contiguous county;
• a federal, state, or county declaration of emergency in effect in the county in which the nurse is employed or in a contiguous county;
• a health care employer's determination that there is a patient care emergency (an unforeseen event that could not be prudently planned for and does not regularly occur) that makes work beyond regularly scheduled hours necessary; or
• 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.

The phrase "regularly scheduled work hours" is defined in the law as the 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, or some other measure generally used by the health care employer to determine when an employee is minimally supposed to work, consistent with the provisions of any applicable collective bargaining agreement.  Therefore, if a part-time nurse is regularly scheduled to work 20 hours per week, that nurse cannot be required to work more than 20 hours per week unless one of the exceptions identified above applies.

Under the regulations, all health care employers are required to establish and implement a written Nurse Coverage Plan within 90 days of the regulations' July 15, 2009 effective date, which means that the Plan must be in place by October 13, 2009.  The Plan must take into account typical patterns of staff absenteeism due to illness, leave, and other factors, and must identify as many alternative staffing methods as are available to ensure adequate staffing through means other than the use of mandatory overtime.  These methods might include contracts with per diem nurses, arrangements for assignment of floating nurses, and requesting voluntary overtime from nurses.  The Plan must be made available to all nursing staff, either by posting the Plan in a location accessible to all nursing staff or by other means such as posting on the health care employer's intranet site, and must be provided to any collective bargaining representative of the nurses.  The Plan must also be provided to the Commissioner of Labor, upon request.

Health care employers that do not prepare a Nurse Coverage Plan may be precluded from relying on the "patient care emergency" exception to the law.  The regulations provide that a health care employer may not require a nurse to work beyond his or her regularly scheduled hours to address a patient care emergency, unless the employer first makes a good faith effort to secure coverage by utilizing the alternative staffing methods set forth in its Plan.  The health care employer is required to document its attempts to secure coverage under the terms of its Plan.  If a health care employer does not have a Nurse Coverage Plan in place, or fails to make efforts to utilize the alternative staffing methods set forth in its Plan, the employer cannot rely on the "patient care emergency" exception. 

The regulations also provide some guidance for health care employers regarding how the other exceptions will be interpreted and applied by the NYSDOL.  The regulations provide that a determination regarding whether a "health care disaster" exists shall be made by the health care employer and must be reasonable under the circumstances.  Some examples of health care disasters include unforeseen events involving multiple serious injuries (such as fires, auto accidents, or a building collapse), chemical spills, or a widespread outbreak of an illness requiring hospitalization of many individuals in the community.  The regulations also provide that a determination regarding whether a nurse's continued presence beyond regularly scheduled work hours is required for an ongoing medical or surgical procedure shall be made by the nursing supervisor or nurse manager supervising the nurse.