Nurse Mandatory Overtime Frequently Asked Questions

Nurse Mandatory Overtime

Frequently Asked Questions

Question	Answer
Is there a law that protects nurses from being forced to work overtime?	Yes. The Restrictions on Consecutive Hours of Work for Nurses law (effective July 1, 2009): Prohibits health care employers from mandating overtime for nurses Sets the conditions for exceptions to this rule The New York State Department of Labor (NYS DOL) enforces this law. The law appears here
What is meant by overtime?	“Overtime” in this context is different from its usual meaning -- hours worked past forty in a given week. Here, “overtime” means work hours over and above the predetermined and regularly scheduled work hours a nurse has agreed to work.
Who is covered under the law for mandatory overtime restrictions?	This law covers registered professional nurses (RN) or licensed practical nurses (LPN) who: Provide direct patient care Work for certain health care employers The law applies regardless of the employment basis, whether it is: Full-time Part-time Per diem Contract Nurses It also covers nurses who provide services: Through contracts with third party staffing providers (nurse registries and temporary employment agencies) As independent contractors
What is a "health care employer"?	A "health care employer" is any: Individual Partnership Association Corporation Limited liability company that provides health care services in a facility licensed or operated under the public health law. This includes any facility operated by: The state A political subdivision A public corporation This also includes facilities operated under: The mental hygiene law The education law The correction law by: The state A political subdivision A public corporation Examples include (but are not limited to): Hospitals Nursing homes Outpatient clinics Comprehensive rehabilitation hospitals Residential health care facilities Residential drug and alcohol treatment facilities Adult day health care programs Diagnostic centers
When is mandatory overtime prohibited?	The law prohibits a health care employer from requiring a nurse to work overtime beyond the predetermined number of hours a nurse: Has agreed to work Is normally scheduled to work Regulary scheduled hours may include: Prescheduled on-call time Time spent communicating shift reports on patient status needed to ensure patient safety However, employers may NOT substitute on-call time for mandatory overtime. We consider on-call time as time spent working for purposes of determining whether a health care employer has required a nurse to work overtime.
What is meant by “prescheduled on-call time”?	On-call time must be prescheduled to be exempt from this law. A health care employer may not place an employee on call in a last-minute effort to cover an open shift. Rather, the nurse must be scheduled for “on-call” in accordance with: The facility’s normal scheduling procedures Any collective bargaining agreement.
What steps must health care employers take to avoid using mandatory overtime?	A health care employer must prudently plan for patient care emergencies and meet routine staffing needs without using mandatory overtime by implementing a Nurse Coverage Plan. This plan should take into account typical patterns of staff absenteeism due to: Illness Leave Bereavement Other similar factors It must reflect the health care employer’s typical levels and types of patients served by the health care facility. The Plan must identify and describe alternative staffing methods available to the health care employer to ensure adequate staffing without mandatory overtime. This includes (but is not limited to): Contracts with per diem nurses Contracts with nurse registries/employment agencies for nursing services Arrangements for assignment of nursing floats Requesting an additional day of work from off-duty employees Development and posting of a list of nurses seeking voluntary overtime The health care employer must document all attempts to avoid the use of mandatory overtime and seek alternative staffing.
Are health care employers required to post a notice relating to the mandatory overtime restrictions?	Yes. Health care employers are required to make their Nurse Coverage Plan readily available to all nursing staff. They must do this by: Posting/placing the plan in a location accessible to nursing staff Use any means available to make it accessible to nursing staff, e.g. electronic posting on the employer’s internal web site. The employer also must provide the Plan to: Any collective bargaining representative representing nurses at the health care facility The Commissioner of Labor, or his or her designee, upon request
When can a health care employer require nurses to work overtime?	Mandatory overtime is allowed only in these limited circumstances: A patient care emergency, as determined by the health care employer (only as a last resort after implementing the Nurse Coverage Plan)
What is considered a “patient care emergency”?	A "patient care emergency" means a situation that: Is unforeseen Could not be prudently planned for And requires the continued presence of the nurse to provide safe patient care Before requiring an on-duty nurse to work beyond his or her regularly scheduled work hours to address a patient care emergency, the health care employer must: Make a good faith effort to have overtime covered on a voluntary basis Use all methods listed in its Nurse Coverage Plan. The health care employer must document attempts to secure nurse coverage: Use of phone logs Show other records appropriate to this purpose. An employer cannot deem a situation a patient care emergency if it is the result of routine nurse staffing needs due to: Typical staffing patterns Typical levels of staff absenteeism Time off typically approved by the employer for vacation, holidays, sick leave, and personal leave This applies unless the employer followed an acceptable Nurse Coverage Plan but failed to produce staffing to meet the particular patient care emergency.
What is a “health care disaster”?	A health care disaster means a natural or other type of disaster that: Increases the need for health care personnel Unexpectedly affects the county in which the nurse is employed or in a contiguous county Requires keeping existing on-duty personnel to maintain staffing levels necessary to provide patients with adequate care Examples of health care disasters include: 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 people served by the health care employer A riot, disturbance, or other serious event within an institution that increases the need for nursing care The health care employer determines if a health care disaster exists. This determination must be reasonable under the circumstances presented.
Can a nurse work overtime voluntarily?	Yes, the law does not prohibit a nurse from voluntarily working overtime. A nurse may volunteer for overtime by agreeing to: - A collective bargaining agreement - Other written contract - Agreement to work Work a particular day or shift over and above his or her regularly scheduled work hours Be placed on an on-call roster Prescheduled on-call time under
What if my contract or collective bargaining agreement has additional protections against the use of mandatory overtime?	Such provisions would still be in effect because the law cannot diminish or waive any rights of any nurse pursuant to any other: Law Regulation Collective bargaining agreement.
What if my employer asked me to waive my rights under this law?	A health care employer may not use employee waivers of the protections afforded under Labor Law §167 or this Part as an alternative to compliance with such law or regulation. A health care employer who seeks such a waiver from a nurse will have violated the law.
What can I do if I was required to work overtime but I do not believe my employer met the requirements of the law?	If you believe that your employer mandated overtime in violation of the law, you can file a Mandatory Overtime Complaint form. Get an electronic version of the form here, or you may call (888) 4-NYSDOL or (518) 457-9000 to obtain a hard copy. Submit the completed form by mail or fax to the address shown at the top of the form.
Who can file a complaint?	A complaint may be filed by: One nurse A group of nurses The recognized collective bargaining representative of the nurses at a facility File a separate complaint form for each individual who is mandated to work overtime in violation of the law.
What happens after I file a Mandatory Overtime Complaint?	The Division of Labor Standards will conduct an investigation. You will receive an acknowledgement of your complaint. We may contact you if we need further information. DOL will also contact the health care employer as part of its investigation. If we determine that the complaint is valid, DOL will send a violation notice to the employer asking the employer to cease and desist from the use of mandatory overtime.
Who can I contact if I have questions?	You may contact the Division of Labor Standards at (888) 4-NYSDOL or (518) 457-9000 or via email at LSMandatoryOT