NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10618
SPONSOR: Rules (Kim) TITLE OF BILL:
An act to amend the labor law, in relation to maximum hours for home
care aides
PURPOSE OR GENERAL IDEA OF BILL:
To protect home health aides from being required to work unreasonable
work schedules in any day or week and ensure they are not pressured by
employers with disciplinary action.
SUMMARY OF PROVISIONS:
This bill defines home care aide as a home health aide, personal care
aide, personal care attendant, home attendant or other licensed or unli-
censed person whose primary responsibility includes the provision of
in-home assistance with activities of daily living. It also requires
that any overtime be voluntary and if the aide does not accept it, he or
she cannot be penalized. Further, it does not mean that he or she will
not accept or reject overtime in the future. Finally, the bill allows
the aide to bring a civil action against his or her employer for violat-
ing their freedom to refuse overtime and a range of damages.
JUSTIFICATION:
Home care workers in New York are essential to maintaining the daily
well-being and long-term care of older adults and people living with
chronic health conditions or disabilities. Home care workers and
personal care aides are among the fastest growing occupations in the
state. New York State employs more than 210,000 home care workers and
they rank as NYC's single largest occupational group. The demand for
home care workers will only accelerate with a growing aging population.
It has become increasingly apparent that many home care workers are
required by employers to work mandatory 24-hour shifts to care for
people who have been approved for around-the-clock care. Home care work-
ers report that they are often required to work 24-hour shifts consec-
utively in a week. The growth in mandatory 24-hour shifts can endanger
the health and safety of both home care workers and care recipients.
Studies have shown that prolonged periods of wakefulness (17 hours with-
out sleep) can significantly impair hand-eye coordination, decision-mak-
ing skills and memory. Workers' sleep is shorter, lighter, more frag-
mented and less restorative than normal sleep at night. Twenty-four hour
shifts are equally detrimental to care recipients. When home care work-
ers are too fatigued or become chronically ill from lack of proper rest
and sleep, care recipients those approved for 24-hour care and among the
neediest of clients - are less likely to receive proper treatment and
safe care. They face a higher risk of injury when workers are mentally
or physically fatigued to safely move them or assist with medically-re-
lated tasks. Further, burn-out, occupational related illnesses and high
turnover among workers lowers the quality and continuity of care.
The labor of home care workers contributes to the well-being and long
term care of New York's aging community and people living with chronic
health needs or disabilities. Home care workers are also an important
component of the state's economic growth. It is thus declared to be the
public policy of this State to protect home care workers from 24-hour
shifts in order to safeguard the health, safety and general well-being
of home care workers and their families, as well as care recipients,
consumers and the public.
PRIOR LEGISLATIVE HISTORY:
2024A6899/Epstein - Enacting Clause Stricken
2023-24 A6899/Epstein - S6561/Persaud - Referred to Labor
2021-22 A3145/Epstein - S0359/Persaud - Referred to Labor
2019-20 A8064/Epstein - S6640/Persaud -Referred to Labor
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately
STATE OF NEW YORK
________________________________________________________________________
10618
IN ASSEMBLY
June 20, 2024
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Kim,
Epstein) -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to maximum hours for home
care aides
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 167-a to
2 read as follows:
3 § 167-a. Hours of labor for home care aides. 1. For purposes of this
4 section: (a) "Home care aide" means a home health aide, personal care
5 aide, personal care attendant, consumer directed personal assistant,
6 home attendant or other licensed or unlicensed person whose primary
7 responsibility includes the provision of in-home assistance with activ-
8 ities of daily living, instrumental activities of daily living or
9 health-related tasks, or the provision of companionship or fellowship.
10 The provisions of this section shall apply equally to services provided
11 by home care aides who work on episodes of care as direct employees of
12 the care recipient, certified home health agencies, long term home
13 health care programs, or managed care plans, or as employees of licensed
14 home care services agencies, limited licensed home care services agen-
15 cies, or under any other arrangement.
16 (b) "Unforeseeable emergent circumstance" means an unpredictable or
17 unavoidable occurrence that requires immediate action.
18 (c) "Maximum home care hours" shall mean (i) consecutive twelve-hour
19 shifts per twenty-four hour period or (ii) any one single shift exceed-
20 ing twelve hours per twenty-four hour period.
21 2. (a) Notwithstanding any provision of law to the contrary, no
22 employer shall assign a home care aide to more than the maximum home
23 care hours except as provided for in subdivision four of this section.
24 (b) Any requirement of a home care aide to accept an assignment for
25 more than the maximum home care hours contained in any contract, agree-
26 ment or understanding executed or renewed after the effective date of
27 this section shall be void.
28 3. The agreement of any home care aide to accept an assignment for
29 more than the maximum home care hours shall be voluntary. Consent to
30 accept an assignment for more than the maximum home care hours must be
31 expressly provided by the employee. Consent to accept an assignment for
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09991-02-3
A. 10618 2
1 more than the maximum home care hours on a specific occasion shall not
2 constitute implied consent to accept such assignment in the future. The
3 refusal of a home care aide to accept an assignment for more than the
4 maximum home care hours shall not be grounds for discrimination,
5 dismissal, discharge, threats, or any other penalty or employment deci-
6 sion adverse to the employee.
7 4. (a) The provisions set forth in subdivision two of this section
8 shall not apply in case of an unforeseeable emergent circumstance when
9 assignment for more than the maximum home care hours is determined
10 necessary, provided that the employer has exhausted all reasonable
11 efforts to obtain proper staffing. However, such assignment shall not
12 exceed four hours over a twelve-hour shift, and shall be subject to the
13 requirement of consent pursuant to subdivision three of this section.
14 (b) Where an unforeseeable emergent circumstance is due to the delayed
15 arrival of a home care aide who is relieving a home care aide who has
16 worked the maximum number of hours for such day pursuant to subdivision
17 two of this section, such assignment shall not exceed two hours without
18 acceptance of such overtime pursuant to the provisions of subdivision
19 three of this section.
20 (c) Except as provided for in paragraph (b) of this subdivision, a
21 staffing shortage may not constitute an unforeseeable circumstance.
22 5. An employer shall not threaten, discharge or in any other manner
23 discriminate, penalize or take adverse action against a home health care
24 aide because they have made any complaint that the employee has been
25 required to accept an assignment for more than the maximum home care
26 hours in violation of the provisions of this section:
27 (a) to their employer, including the employer's representative or
28 agent;
29 (b) to the commissioner or the department; or
30 (c) to any other city, state or federal agency.
31 6. (a) A home care aide may bring a civil action in a court of compe-
32 tent jurisdiction against any employer or his or her agent, or the offi-
33 cer or agent of any corporation, partnership, or limited liability
34 company, or any other person who violates subdivision two, three, four,
35 or five of this section. An employer or other person who violates such
36 subdivisions shall be liable for all legal and/or equitable relief as
37 may be appropriate to effectuate the purposes of this section, including
38 but not limited to compensatory damages for loss of consortium, liqui-
39 dated damages, punitive damages, and reinstatement and back wages, in
40 addition to injunctive relief and any other appropriate relief. An
41 employer or other person who is found to have violated subdivision two,
42 three, four or five of this section shall also be liable for the payment
43 of reasonable attorney's fees.
44 (b) On behalf of any home care aide, the commissioner may bring any
45 legal action necessary, including administrative action and civil
46 action, to bring a claim for a violation of subdivision two, three,
47 four, or five of this section. Further, if the commissioner determines
48 that an employer or employer's agent or the officer or agent of any
49 corporation, partnership, or limited liability company, or any other
50 person has violated subdivision two, three, four or five of this section
51 the commissioner may issue sanctions and penalties, including, but not
52 limited to compensatory damages for loss of consortium, liquidated
53 damages, and punitive damages, and may also order reinstatement, back
54 wages, injunctive relief, and all other appropriate relief.
55 § 2. This act shall take effect immediately.
