DATE: January 15, 2010

SUBJECT: OMRDD Policy on Overtime for Direct Care Employees

This policy memorandum replaces the December 10, 2007 memorandum form past Director of Human Resources Larry Smith. This policy supersedes all existing DDSO polices related to direct care employees' ability to work overtime as well as restrictions on the amount of voluntary overtime that can be worked.

The purpose of this memorandum is to insure statewide consistency in the assignment and distribution of overtime.

Overtime and Health and Safety Concerns

It is OMRDD's mission to provide high quality care and treatment of persons with developmental disabilities. Our statutory and regulatory obligation to skillfully, safely, and humanely administer such services is paramount. Management has the responsibility to ensure that employees who provide direct care and/or treatment of individuals with disabilities are able to safely and properly perform the duties of their assignments. Additionally, it is important that employees balance overtime work to insure it is in the best interest of their own health and safety.

New York State Overtime Policy

New York State Division of Budget Bulletin G-1024 states that it is the policy of the State that overtime work should be held to a minimum and must be approved in advance by an authorized supervisor. Once a determination is made that overtime is necessary, supervisors must follow the provisions of the applicable collective bargaining agreements.

Statutory and Regulatory Mandates

OMRDD's mandate to provide quality care and a safe environment for individuals with disabilities is grounded in the Mental Hygiene Law, and State and Federal Rules and Regulations, including MHL 13.07(c), MHL 33.02, MHL 33.03, MHL 13.17, 14 NYCRR 633.4, 14 NYCRR 633.7 and 42 CFR Part 483.

NYS/CSEA ISU Agreement

The provisions for the assignment and distribution of overtime for direct care staff are contained in Article 27 of CSEA Intuitional Services Unit (ISU) Agreement. In addition, Article 46 of the ISU Agreement provides that when an employee's normal daily schedule is seven and one-half or eight hours, an employee shall not be required but may volunteer to work mare than 16 consecutive hours in a 24-hour period.

Voluntary Overtime Distribution and Procedures

A. Standards

There are times when a supervisor must evaluate whether permitting an employee's voluntary overtime is in the best interest of the health, safety and quality of care of both the individuals with disabilities and the employee. When an employee's proposed overtime would meet any of the following standards, an evaluation must be made by a supervisor as to that employee's ability to safely work the overtime assignment.

1. Continuous Hours worked: The overtime will result in the employee working more than sixteen consecutive hours.

2. Multiple double shifts: The overtime will result in the employee working more than three (3) double shifts in any consecutive seven days. (For purposes of this policy, it is assumed that a shift comprises eight hours).

3. Continuous days on duty: The overtime will result in the employee working full shifts for seven (7) consecutive days without a day off.

B. Evaluation Procedure

Prior to the commencement of any voluntary overtime, supervisors or the employee on site responsible for overtime must ask the employee, and the employee must disclose, whether the overtime, if permitted, will result in meeting any of the above standards. If so, a supervisor must evaluate whether the employee is able to perform the tasks and duties of the assignment or whether such ability would be impaired. This evaluation shall be made by having a conversation with the employee and considering the following factors:

· The alertness of the employee – whether the employee demonstrates signs of fatigue, such as tiredness, sleepiness, irritability, impaired ability to perform mental and/or physical tasks, poor memory, judgment, etc.

· The demands of the specific assignment to be performed, such as enhanced supervision, driving, medication administration, the mental and physical demands on the employee, etc.

· The period of time from the employee's last shift and the next scheduled shift.

· The number of extra shifts or double shifts worked in the previous several days or on consecutive workdays.

· The shifts the employee is scheduled to work over the next few days, including any pre-scheduled overtime.

· The commute time between home and work in cases where a person has only one shift off before beginning a new shift.

The decision whether to permit the overtime shall be made at the sole discretion of the supervisor. If the supervisor determines that the employee's ability to work overtime would be impaired, the overtime shall be denied except in the case of any emergency as described below. If denied, the justification for the denial must be documented in writing and provided to the employee with a copy to the DDSO Director of Institutional Human Resources and the local CSEA president. Such documentation must be provided within ten (10) calendar days of such denial.

Mandatory Overtime Procedures

Prior to the commencement of any mandatory overtime, supervisors or the employee on site responsible for overtime must ask the employee, and the employee must disclose, whether the overtime, if permitted, will result in the employee working more than three double shifts in any consecutive seven days, or seven consecutive days without a day off. In those circumstances, the employee has the right to be bypassed on the roster for that shift, except in an emergency.

An emergency is defined as an unforeseen event that could not be prudently planned for by the DDSO and does not regularly occur. This includes situations where all alternative options for coverage within the DDSO have been exhausted. Regular/routine sick calls, vacations, breaks during shifts, holidays, bereavement and leaves of absence such as workers compensation, maternity leave or military leave are not considered emergencies.

In such emergency situations where there are no other options for coverage, management will make every effort to minimize the overtime, such as realigning or modifying the duties to be assigned and/or providing relief to the employee prior to the end of the shift. Those employees selected to work overtime may include those who had previously volunteered.

Additional Considerations

When an employee who has not previously worked at the location offering the overtime accepts an overtime assignment, the supervisor responsible for assigning overtime must make a determination as to whether the employee can perform the assignment. For example, some of the factors a supervisor should consider include the following:

· If the work requires specific training, familiarity with behavior intervention plans, and/or necessary certification, such as SCIP or AMAP certification, does the employee have such training or certification?

· If the work is gender specific or involves enhanced supervision, does the employee meet the qualifications?

If the supervisor responsible for assigning overtime determines that the employee does not meet the criteria stated above, such assignment shall be denied.

Distribution

This memorandum must be distributed to all direct care workers and supervisors, including those responsible for assigning overtime. It must also be available on-line on each DDSO intranet site.

Questions regarding the ISU Agreement and the assignment and distribution of overtime should be addressed to Matthew Guinane, Director of Employee Relations at (518) 473-1728.

Direct Care Overtime Approval Process Flow Chart



Direct Care Mandatory Overtime Process Flow Chart