NEW YORK NURSE: July/August 2008
by Nancy Webber
It had taken more than eight years, and some of the RNs watching from the gallery had tears in their eyes as the New York State Senate unanimously passed a bill to ban mandatory overtime for nurses. The measure passed the State Assembly a few hours later on that historic day: June 23, 2008.
“I just had to be here,” said Nancy Joly-Murphy. “This is a great day for nurses.” She and other NYSNA members and staff applauded as one senator after another rose to support the bill and commend nurses for their commitment to patient care. Sometimes their enthusiasm was met with a sharp rap of the gavel from the Senate podium.
The legislation was sent to Gov. David Paterson in July. He is expected to sign the measure, as he has already publicly expressed his support for it. If enacted, the law will go into effect on July 1, 2009.
Lobbying for a ban on mandatory overtime for nurses has slowly gained momentum since 2000, when a bill was first introduced at NYSNA’s request.
State Senator Thomas Morahan championed the bill from the outset, after talking to RNs on the strike line at Nyack Hospital in 1999. He sponsored the bill every year until its passage this year, the first time the measure came up for a vote in Senate. The bill was sponsored in the Assembly by Aileen Gunther, a registered nurse, who actively promoted it since her election in 2005.
Over the years, a ban on mandatory overtime also gained support from other unions that represent RNs. It became the key issue at annual, multi-union nurses’ rallies at the State Capitol. “Through the intensive lobbying efforts of NYSNA members and staff, legislators came to recognize that mandatory overtime was a threat to patient safety and made the nursing shortage worse,” said Shaun Flynn, director of the NYSNA Governmental Affairs Department.
When the new law is enacted, New York will join 10 other states that have legislation restricting or prohibiting mandatory overtime for nurses.
It’s unusual for a bill to get a “three-way” approval without some compromises, however, and this bill is no exception. In order to get the support of both houses of the legislature and the governor, supporters had to agree to exempt home health care from the requirements.
“We believe that all nurses should be protected from abusive mandatory overtime,” said Flynn. “We will continue to remind legislators of the dangers for homecare nurses who work excessive hours and urge them to amend the law.”
The new legislation will affect RNs and LPNs who provide direct patient care in all practice settings, both public and private, except home health care. It creates a new section in state labor law and will be regulated and enforced by the New York State Department of Labor.
It prohibits employers from requiring nurses to work beyond their “regularly scheduled work hours,” which includes pre-scheduled on-call time and the time spent for the purpose of communicating shift reports. It specifically states that employers will not be allowed to use on-call time as a substitute for mandatory overtime. The law does limit the number of hours nurses can volunteer to work overtime.
The law states that the ban on mandatory overtime will not apply in the case of a healthcare disaster or a declared emergency in the area that increases the need for healthcare personnel. It also will not apply if a healthcare employer determines there is a patient care emergency, which is defined as “an unforeseen event that could not be prudently planned for by an employer and does not regularly occur.” Even in this case, the employer must first make a good faith effort to have overtime covered on a voluntary basis.
The law also will not apply when nurses are participating in an ongoing medical or surgical procedure and their presence is required to ensure the health and safety of the patient.
The bill also affirms that RNs or LPNs who refuse to work beyond their regularly scheduled work hours cannot be charged with patient abandonment or neglect on that basis alone. This codifies a position statement adopted several years ago by the New York State Board for Nursing.
While a ban on mandatory overtime was on the way to passage by the State Legislature, the state agency responsible for oversight of nurse professionals was calling for restrictions on voluntary overtime as well.
“Nurses who voluntarily work beyond their normally scheduled hours in a situation which is not a declared emergency must be able to demonstrate that they are competent to perform their professional responsibilities,” read a statement from the State Education Department, which was posted in June on the SED website.
The statement adds that registered nurses who voluntarily work more than 16 continuous hours in a 24-hour period are running the risk of being charged with unprofessional conduct. The decision to work long hours, at either one or multiple jobs, will be considered by the New York State Board of Nursing (SBFN) as “a factor” in determining whether a nurse has shown willful disregard for patient safety.
“The board based this opinion on extensive literature and evidence that there is a positive correlation between number of hours worked and rates of errors,” said Barbara Zittel, SBFN executive secretary.
The published opinion puts registered nurses on notice that working extra hours can jeopardize their licenses. “We’re advising nurses that they work more than 16 hours at their own risk,” said Eileen Avery, associate director for the NYSNA Education, Practice & Research (EPR) Program. “If an untoward event occurs, this will definitely come into consideration during a disciplinary hearing.”
At a time when nurses are in short supply, it can be tempting for RNs to work extra hours or even extra jobs. But the urge to help out or to earn more pay must be balanced against the possible harm to patients, Avery said.
“We believe that nurses are able to judge for themselves whether they are competent to provide patient care,” she added. “But this opinion shows that the SBFN will make its own judgment about a nurse’s competence if a patient safety issue arises.”
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After the first flush of victory, nurses know that a new law banning mandatory overtime will have to be tested in the workplace and perhaps in the courts.
State agencies will make regulations to implement the law and develop guidelines for enforcing it. Of all the provisions in the law, the definition of “emergency” will be crucial. An employer will be allowed to invoke a patient care emergency, with the limitation that it must be “an unforeseen event that could not be prudently planned for by an employer and does not regularly occur.”
The language was derived from NYSNA labor contracts that restrict or prohibit mandatory overtime and is designed to prevent employers from using mandatory overtime on a regular basis as a staffing tool.
“The devil is in the details,” said Eileen Avery, associate director for the NYSNA Education, Practice & Research (EPR) Program. “Once the law is in effect, we expect parts of it to be tested. Ultimately, the outcomes of regulatory investigations or court decisions will define what constitutes an emergency.”
“NYSNA’s job to protect nurses and patients does not end with the passing of legislation,” Avery continued. “We will work closely with the Department of Labor and carefully monitor how the law is enforced during the coming years.”
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