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Amendments to Nurse Overtime Law Modify Penalties and Delay Effective Dates

The State Legislature has passed amendments to a law enacted at the end of last year that imposes penalties for mandatory nurse overtime in nursing homes and other facilities. The amendments modify the penalties for repeat violations, eliminate the 15 percent increase in overtime pay when violations are found, require a good faith effort to avoid mandatory overtime even in the event of emergencies, and add reporting requirements when exceptions are used. In addition, the amendments extend the effective dates of the law until June 28, 2023 for the penalty and reporting provisions and until March 30, 2023 for the good faith effort provision. The amendments were announced in the Governor's approval memorandum of the underlying legislation and are expected to be signed into law.

As previously reported, LeadingAge NY advocated for a veto of the underlying legislation and two related bills, one of which would have extended the prohibition to home care agencies. The recent amendments were the outcome of advocacy by our association and others and eliminated several of the most challenging provisions.

The new provisions of the Labor Law (including the recent amendments which have not yet been signed into law) impose penalties on hospitals, nursing homes, and certain other facilities that require nurses (defined as registered nurses and licensed practical nurses) to work more than their "regularly scheduled work hours," subject to certain exceptions. Under the law, as amended, an employer that is determined to have violated the law may be assessed a civil penalty of up to $1,000 for a first violation, $2,000 for a second violation within 12 months, or $3,000 for a third or subsequent violation within 12 months. In addition, a civil penalty of not more than $500 may be assessed for failing to submit required reports pertaining to the use of mandatory overtime in response to a disaster, emergency, or ongoing medical procedure, as described below. The recent amendments make the imposition of penalties permissive, rather than mandatory. The penalty provisions are effective on June 28, 2023.

The new law retains existing exceptions for disasters, emergencies, and ongoing medical procedures, but requires facilities to make good faith efforts to pursue alternatives before mandating overtime under any of the exceptions. These efforts include calling per diems, agency nurses, and floaters, and requesting an additional day of work from off-duty employees. Under prior law, good faith efforts to pursue alternatives were required only in the context of an employer-declared emergency. The effective date for this particular requirement is March 30, 2023.

The amendments require an employer to notify the Department of Labor (DOL) when it mandates overtime under one of the exceptions for disasters, emergencies, or ongoing procedures. An employer that uses mandatory overtime exceptions for 15 days or more in a month must report specified information to DOL and the Department of Health (DOH). An employer that uses mandatory overtime exceptions for 45 days or more in any consecutive three-month period must submit an explanation for its need to mandate overtime and an estimate of when mandatory overtime will cease. Violations of these reporting requirements are subject to a penalty of up to $500. The reporting requirements are effective on June 28, 2023.

The new law adds a process for enforcement of the mandatory overtime prohibition. Enforcement is initiated upon receipt of complaint to DOL. DOL is required to create an enforcement officer to oversee investigations of complaints. Upon receipt of a complaint, the enforcement officer may investigate in consultation with DOH and must notify the employer.

The amendments also require DOL to make available on its website a poster informing employees of the process for filing a complaint concerning mandatory overtime. Facilities are required to display the poster in a conspicuous location accessible to employees.

Contact: Karen Lipson, klipson@leadingageny.org