NEW YORK NURSE: June 2009
by Nancy Webber
Nurses will soon be working under a new state law banning mandatory overtime (MOT) for RNs and LPNs. NYSNA worked to get the law passed for more than eight years and now is taking the lead in informing nurses and employers about putting it into action.
The bill was signed into law in August 2008 and will take effect July 1, 2009. The one-year delay was to allow healthcare facilities to develop plans and policies for dealing with routine staffing problems without resorting to mandatory overtime.
“We have little evidence that employers have taken advantage of this period,” said Eileen Avery, an associate director in NYSNA’s Education, Practice & Research (EPR) Program. In addition, the state Department of Labor is still in the process of developing regulations to define and enforce the new law.
The law applies to nurses who provide direct patient care in all practice settings, both public and private, with the exception of home care.
It prohibits employers from requiring nurses to work beyond their “regularly scheduled work hours.” It does not limit the number of hours nurses can volunteer to work overtime.
The Office of Professions has issued an opinion that nurses who volunteer beyond 16 hours must be able to demonstrate their competency to perform their professional responsibilities. Working beyond 16 hours will be taken into consideration as a factor in determining willful disregard for patient safety and could result in a charge of unprofessional conduct.
Exceptions to the law include times when a healthcare disaster or a declared emergency increases the need for nurses. Healthcare employers may mandate overtime if they determine there is a facility patient care emergency. Even in this case, an employer must first make a good-faith effort to have overtime covered on a voluntary basis.
The law affirms that RNs or LPNs who refuse to work beyond their regularly scheduled work hours cannot be charged with patient abandonment or neglect on that basis alone. This codifies a position statement adopted several years ago by the New York State Board for Nursing.
Some definitions of terms used in the law are included in the law itself, and some have been provided by the state Department of Labor.
REGULARLY SCHEDULED WORK HOURS
This includes the hours a nurse has agreed to work and is normally scheduled to work, time spent for the purpose of communicating shift reports, and pre-scheduled on-call hours. Employers are not allowed to use on-call time as a substitute for MOT.
PATIENT CARE EMERGENCY
This definition is the key to how the law is put into practice. In addition to federal, state, or county declared disasters or emergencies, the law allows an employer to determine that there is a patient care emergency when there is not enough staff to provide safe patient care. This is defined as “an unforeseen event that could not be prudently planned for by an employer and does not regularly occur.” The DOL has issued a memorandum stating that regular or routine sick calls, vacations, breaks during shifts, holidays, and leaves of absence are not emergencies, as they can be prudently planned for.
Before mandating overtime, employers must make a good-faith effort to get coverage by calling per diems, calling agency nurses, assigning floats, contacting off-duty employees, and requesting voluntary overtime from on-duty employees. If an employer does not take all of these steps, he or she is not making a good-faith effort.
After July 1, 2009, nurses should notify the state DOL if they believe the MOT law has been violated. As it is unlikely that the state will be proactively inspecting facilities or interviewing employers, it is up to nurses themselves to report violations. If incidents are not reported, the DOL will assume that facilities are in compliance.
NYSNA stands ready to assist nurses in reporting violations of the MOT law. If you are represented by NYSNA for collective bargaining, notify a member of your executive committee or your nursing representative if you are mandated in a non-emergency situation or if your employer has not made a good-faith effort to provide staffing.
If you are forced to work overtime, fill out a complaint summarizing the circumstances. NYSNA bargaining unit members are encouraged to use Protest of Assignment forms for this purpose. Document the date and time the incident occurred, the regularly scheduled hours of work, the number of mandated hours, the reason given for MOT, and the names of all the individuals involved.
Violations of Labor Law may be reported by calling 888-4-NYSDOL or e-mailing firstname.lastname@example.org. Complaints should be made as soon after the event as possible, preferably the same day. Employers may not penalize or discharge employees for filing complaints with the DOL.
The state will investigate complaints by obtaining evidence from both the nurse and the employer. Employers will be required to demonstrate that they followed developed staffing plans, had a genuine patient care emergency, and made good-faith efforts to avoid MOT.
If an employer violates the Labor Law, he or she is guilty of a misdemeanor, which is punishable by fine or imprisonment, or both.
“We expect that the law will be tested,” said Avery. “Ultimately, the outcomes of regulatory investigations or court decisions will determine how effective it will be in preventing the brutal practice of mandatory overtime.”