12 CRR-NY 177.3NY-CRR
12 CRR-NY 177.3
12 CRR-NY 177.3
177.3 Mandatory overtime prohibition.
(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.
(c) Nothing in this Part shall prohibit a nurse from voluntarily working overtime. A nurse may signify his or her willingness to work overtime by either:
(1) agreeing to work a particular day or shift as requested;
(2) agreeing to be placed on a voluntary overtime list or roster; or
(3) agreeing to prescheduled on-call time pursuant to a collective bargaining agreement or other written contract or agreement to work.
12 CRR-NY 177.3
Current through June 30, 2021
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