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November 17, 2010

New York State Department of Labor Proposes Nurse Overtime Emergency Rule

On July 1, 2009, a New York Labor Law prohibiting health care institutions from requiring registered nurses and licensed practical nurses to work over their regularly scheduled work hours went into effect.  See N.Y. Lab. Law § 167 (“the Nurse Overtime Law”).  Shortly after the law went into effect, the New York State Department of Labor (“NYSDOL”) issued Emergency Regulations that addressed the limited conditions under which health care employers could require nurses to work overtime.  Our August 13, 2009 client alert addressing these regulations is available at here

Since the initial Emergency Regulations were implemented, the Department of Labor has re-issued them every 90 days without change.  Recently, the NYSDOL proposed an Emergency Rule, which is expected to become effective shortly after the 45-day public comment period.  This Rule adds two significant requirements that have not previously been included in the NYSDOL’s Regulations of the Nurse Overtime Law.
First, the Emergency Rule requires that a health care facility’s required Nurse Coverage Plan identify the supervisor(s) or administrator(s) who will make the final determination as to when it is necessary to utilize mandatory overtime.  The Emergency Rule clarifies that a nurse may not be required to find his or her own shift replacement or self-mandate overtime (the NYSDOL added this language due to concerns that if a nurse working alone was unable to find a replacement he or she would then have to continue working). 

Second, the Emergency Rule requires health care employers that utilize mandatory overtime to make available to the nurse required to work overtime and/or the nurse’s collective bargaining representative, upon request, documentation of the efforts to avoid mandatory overtime.

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Health care institutions covered by Labor Law § 167 should consider updating their Nurse Coverage Plans in the event that, as is expected, the Emergency Rule becomes effective.  If you should have any questions regarding this proposed Rule, please contact us.