Labor & Employment Law Alert: Further Restrictions Regarding Mandatory Overtime for Nurses are Now in Effect

Since 2009, New York State Labor Law Section 167 (“Section 167”) has restricted an employer’s ability to mandate overtime for nurses.  Effective June 28, 2023, Section 167 was amended to expand its application and impose new reporting and posting requirements.

Healthcare employers covered by Section 167 include Article 28 facilities, such as nursing homes, hospitals, diagnostic treatment facilities and other state-operated facilities licensed by New York State.  The amendment expands the scope of covered employers subject to Section 167 to include facilities operated or licensed by the Office of Child and Family Services.

Section 167 prohibits covered employers from mandating overtime except in the following situations:  (1) a health care disaster unexpectedly impacting the county in which the nurse is employed or a health care disaster in a contiguous county; (2) a federal, state or county declaration of emergency in effect in the county where the nurse works or in a contiguous county; (3) the employer mandates overtime because of an ongoing procedure that the nurse is actively involved in and the nurse’s continued presence is needed to complete the procedure and ensure the safety of the patient; and (4) the employer determines there is an emergency, including an unanticipated staffing emergency, and the nurse’s presence is needed to provide safe patient care. Before a covered employer can mandate that a nurse works overtime under any of these exceptions, the employer must make a good faith effort to have the overtime assignment covered on a voluntary basis, such as by calling a per diem nurse, calling an agency nurse, assigning floats, or requesting an additional day of work from nurses who are off duty.  The good faith effort requirement previously only applied to a patient care emergency.

Whenever a covered employer mandates nurse overtime under any of the authorized exceptions, it must be reported to the New York State Department of Labor (“NYSDOL”).  Also, if an employer requires nurses to work overtime at least 15 days in a month, the employer must report to the NYSDOL and the New York State Department of Health (“NYSDOH”): (1) the number of days the employer mandated overtime; (2) the number of nurses that were required to work overtime; and (3) dates and times of the mandatory overtime assignment(s).  If a covered employer mandates that nurses work overtime for forty-five days or more in a three-month period, the employer must file with the NYSDOL and NYSDOH an explanation of why it required mandatory overtime and provide an estimate of when it intends to stop mandating overtime.

There are new monetary penalties if the NYSDOL determines the restrictions of Section 167 have been violated.  Possible penalties include: (1) a $1,000 fine for a first violation; (ii) a $2,000 fine for a second violation within a twelve-month period; and (iii) $3,000 for a third, or subsequent, violation in a twelve-month period.  Covered employers are required to display a poster prepared by the NYDOL in a manner that it can be easily accessed by employees.

As employers navigate these issues, our Firm’s labor and employment attorneys are standing by to provide legal advice.

This communication is for informational purposes and is not intended as legal advice.