June 30, 2009It should not be news to health care employers that on July 1, 2009 New York joins approximately 15 other states when Section 167 of the Labor Law goes into effect - a law which has been publicized as prohibiting 'mandatory overtime' for nurses. What may be 'news' to health care executives is that there are misconceptions about the reach of this law, particularly among nurses. It is critical for all hospital executives and particularly nursing management to understand the law - first, so you can comply with it, and second, so you can educate your own employees.
The new law makes it unlawful for a health care employer to require a registered nurse ("RN") or a licensed practical nurse ("LPN") to work beyond that nurse's "regularly scheduled work hours" (N.Y. Lab. Law § 167(2)(a)). Thus, while touted as an ‘overtime' law, this new statute does not just regulate traditional overtime (hours worked over 40 in a week) - but regulates any extra hours beyond the nurse's "regular schedule." In setting that schedule, the law does not cap the number of hours a nurse may be "regularly" required to work per day or per week. It also does not prohibit or regulate voluntary overtime. The law also contains some important exceptions, more specifically situations where the law will allow health care employers to lawfully mandate overtime. If a nurse is mandated to work, and one of these exceptions does not apply, you have violated the law. However, if you can show that one of these exceptions exists, the employer can mandate the overtime.
The Department of Labor has not yet released any regulations interpreting the new statute. However, the publicity over the new law is extensive, especially among nurses. Even without any DOL guidance, the state and your nurses will expect you to be in compliance. We believe there are two keys to that compliance: (1), getting the right polices in place so you can show a good faith attempt to comply, and (2), educating your employees (nurses and nursing management ) about the new statute.
Who Is Affected?
The new restrictions will apply to all health care employers, which the statute defines as any entity which provides health care services:
- in a facility licensed or operated pursuant to article 28 of the public health law; or
- in a facility operated or licensed pursuant to the mental hygiene law, the education law or the correction law.
N.Y. Lab. Law § 167(1)(a).
This clearly affects all acute care hospitals, long-term care facilities, nursing homes, and rehabilitation facilities. It does not apply to home-care services.
What Is Prohibited?
While this law has been touted as prohibiting mandatory "overtime," it makes no reference to working over 40 hours, the threshold for overtime under the wage/hour laws. It also does not set a cap on the number of hours that may be worked per day or per week. Instead, its focus is on the concept of "regularly scheduled hours" and unscheduled or mandated "overtime" - which is defined as any mandate to work beyond those "regularly scheduled hours."
The precise language of the law provides that an employer may not require a nurse to work beyond his/her regularly scheduled work hours. These are defined as "those hours a nurse has agreed to work and is regularly scheduled to work," including:
- Prescheduled on-call time; and
- Time spent for the purpose of communicating shift reports regarding patient status.
N.Y. Lab. Law § 167(1)(c).
Thus, the law does not prohibit an employer from "regularly scheduling" (i.e., requiring) a nurse to work over 40 hours in a work week, or to work more than 8 to 12 hours in a day. On one hand, a facility would not be in violation if it "regularly schedules" nurses for regular or on-call shifts that in the aggregate exceed 40 hours in a week, provided that they do not do this as a means to circumvent the new law. On the other hand, an employer may not, absent one of the statutory exceptions, require a nurse to take an extra shift or work that is not part of her "regular schedule." This prohibition applies even for nurses who only work part-time, so that even a nurse who is "regularly scheduled" for two or three shifts per week cannot be required to work a fourth shift, even if this shift would not bring her work hours over 40.
Nurses will still be allowed to volunteer for overtime hours, and § 167 does not provide any restrictions on the number of hours they may work. However, it should be noted that the New York State Board for Nursing has issued a statement discouraging any nurse from working over 16 hours:
- Nurses, who voluntarily work beyond their normally scheduled hours in a situation which is not a declared emergency, must be able to demonstrate that they are competent to perform their professional responsibilities. Voluntarily working beyond 16 hours in a 24 hour time period will be considered by the New York State Board for Nursing as a factor in determining the willful disregard of patient safety by nurses and will be subject to a potential charge of unprofessional conduct.
Office of the Professions, Nursing Practice Alerts and Guidelines, Voluntary Overtime, available at http://www.op.nysed.gov/nursevolovertime.htm. This 16-hour limit may act as a de facto cap, as nurses will know that they will risk disciplinary action if they work beyond that limit.
The statute contains four exception situations where mandatory overtime is allowable. Two of these are intended to cover "disasters," one allows for employer-declared "emergencies," and the last is intended to cover a nurse who is in the midst of patient care when his/her shift ends.
These exceptions are:
- If there is a need for increased health care personnel due to a "health care disaster," defined as a "natural or other type of disaster that increases the need for health care personnel...";
- If there is a federal, state, or county declaration of an "emergency";
- If the employer "determines" there is an "emergency...necessary to provide safe patient care":
"Emergency" may include an "unanticipated staffing emergency," defined as "an unforeseen event that could not be prudently planned for by an employer and does not regularly occur." Also, "before declaring an emergency," the employer must show it "has exhausted good faith efforts to have the overtime covered on a voluntary basis," by using per diems, agency nurses, floaters or off-duty employees.
- If a nurse is "actively engaged" in an ongoing medical or surgical procedure and must stay until the end to ensure patient safety.
N.Y. Lab. Law § 167(3).
It remains to be seen how the DOL will interpret these exceptions. What is sufficient to constitute a "disaster" under the first exception - A large snowstorm? A multi-car accident? Are these "disasters?" In the case of the "employer-declared emergency," will a night or holiday shift where you have an unusual number of sick calls qualify as an "unanticipated staffing emergency?" What about the summer weekend when half of your nurses call in "sick?" If these events have occurred before, will the DOL regard them as "unforeseen" and expect you to have planned for them. Also, will the DOL require that you exhaust all staffing options, like calling every agency you deal with or every per diem nurse, before even one RN can be mandated to stay late?
There are also questions as to the particulars of the fourth exception, as in: who defines when the nurse is "actively engaged" in a procedure? What if the nurse refuses to stay, or demands some relief or backup?
These questions cannot be answered until the DOL provides guidance or begins enforcing the law, but they are questions which you should be asking as you craft your policies and procedures.
What Is The Penalty?
There is no special fine for a violation of this law, but the NY Labor Law provides that any violation of the statute can be punishable by a fine and prosecuted as a misdemeanor.
How Will Violations Be Reported?
As with other provisions of the Labor Law, reports of violations will likely come from two sources: your own employees, and any unions you deal with or which are active in your geography. Particularly if you are not organized, unions could well try to capitalize on reports of non-compliance, and use these as a means to organize your employees. That is why, as per the below, it is critical that you educate your nurses and show them that you are doing you best to comply with this new statute.
Compliance With Labor Law § 167
It is difficult to predict how the DOL will construe the statute. However, the agency historically has been liberal and "employee-friendly" in its regulations, and it is already being lobbied by NYSNA and other nursing groups to regulate on the side of the nurses. There has also been a lot of publicity about this new law to your nurses - who all undoubtedly know about it and stand ready to refuse overtime when they do not want it. You also do not want to be the first institution accused of a violation. Thus, in order to avoid fines and bad publicity in these first few months after enactment, a healthcare facility should be ready to show it made some effort to plan for compliance, by putting some policies in place to plan for these "staffing emergencies."
Hence, the key to compliance with this new law will be planning, good policies, employee education, and documenting all of the efforts - so you can prove to the DOL that you have made a good faith effort to comply. We do not believe that the DOL expects the nursing shortage or mandatory overtime to go away overnight. What we predict is that the DOL will expect facilities to understand the law, will have drafted polices and trained nursing management and HR staff to comply with the law, will have contingency plans in place to avoid staffing emergencies, and will be able to show that they did their best to staff and plan in a way to avoid mandatory overtime.
Health Care Employers Should:
- Draft a new ‘mandatory overtime' policy which complies with Labor Law $ 167, and train managers, staffing coordinators and HR how to follow this new law. That policy should:
- Reflect the prohibition on mandatory overtime, as stated in Labor Law § 167.
- Reflect that the facility regularly offers voluntary overtime (through postings, lists, electronic announcements of available OT, etc.) - all to show a good faith effort to cover overtime on a voluntary basis;
- Accurately describe the exceptions under § 167, and require the manager to document which exception he/she believes applies in this situation;
- If you are declaring an "emergency," the policy should require management to document that they first tried to call in agency or per diem staff. If that did not work or could not be done, document why;
- Require that a full written report be made within 24 hours of the incident, so that all steps taken are documented.
Other measures should be put in place to show that your facility is not trying to circumvent or ignore the law. For instance:
- Training is important. Managers and staff who schedule nurses for overtime need to be trained to understand the new law.
- If you need to schedule a nurse for on-call time that will take that schedule beyond 40 hours per week, do this reasonably and as part of a nurse's "regular schedule." Make sure all of these hours are in your budget as "regular" time.
- When possible, limit a nurse's daily scheduled hours to 12 or fewer.
- Take steps to limit the "staffing emergencies" at the facility, so that they are true emergencies - situations that were truly unexpected and beyond your control.
- Document efforts to fill nursing vacancies, to show that the facility is trying to recruit nurses, and ensure that there is sufficient nursing staff to limit the need for unscheduled overtime.
If you or your organization have questions regarding compliance with these new requirements, or any other statutory or regulatory issues, please do not hesitate to contact us. We would be happy to assist you in understanding your legal obligations and implementing the necessary changes.In fact, NYSNA has recommended to its members that they use "protest of staffing" forms to complain to the DOL about mandatory overtime, which they believe to be in violation of the new law.