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A03145 Summary:

BILL NOA03145A
 
SAME ASSAME AS S00359-A
 
SPONSOREpstein
 
COSPNSRBronson, Reyes, Glick, Seawright, Fernandez, Rosenthal L, Simon, McDonough, Griffin, Pichardo, Mitaynes, Gallagher, Forrest, Mamdani, Kim, Niou, Gonzalez-Rojas, Hevesi, Gottfried, Frontus, Kelles, Quart, Davila, Ramos, Fall, Rivera J, Burgos
 
MLTSPNSR
 
Add §167-a, Lab L
 
Requires the provision of care to persons requiring twenty-four hours of care take the form of non-sequential split shifts of twelve hours each.
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A03145 Actions:

BILL NOA03145A
 
01/22/2021referred to labor
02/05/2021amend and recommit to labor
02/05/2021print number 3145a
01/05/2022referred to labor
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A03145 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3145--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 22, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  EPSTEIN,  BRONSON,  REYES, GLICK, SEAWRIGHT,
          FERNANDEZ, L. ROSENTHAL, SIMON, McDONOUGH, GRIFFIN, PICHARDO, MITAYNES
          -- read once and referred to  the  Committee  on  Labor  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        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 not exceed fifty  hours  per  week
    19  and  may not include (i) consecutive twelve hour shifts per  twenty-four
    20  hour period or (ii) any one single  shift  exceeding  twelve  hours  per
    21  twenty-four hour period.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02124-02-1

        A. 3145--A                          2
 
     1    2. (a) The provision of care to persons requiring twenty-four hours of
     2  care  shall  take the form of split shifts of twelve hours each. Neither
     3  this requirement nor any other requirement in this section shall be used
     4  to reduce the hours of authorized care for  patients.    Notwithstanding
     5  any  provision  of  law to the contrary, no employer shall assign a home
     6  care aide to more than the maximum home care hours  except  as  provided
     7  for in subdivision three of this section.
     8    (b)  Any  requirement  of a home care aide to accept an assignment for
     9  more than the maximum home care hours contained in any contract,  agree-
    10  ment  or  understanding  executed or renewed after the effective date of
    11  this section shall be void.
    12    3.  (a) The provisions set forth in subdivision two  of  this  section
    13  shall  not  apply  in the case of an unforeseeable emergent circumstance
    14  when assignment for more than the maximum home care hours is  determined
    15  necessary,  provided  that  the  employer  has  exhausted all reasonable
    16  efforts to obtain proper staffing. However, such  assignment  shall  not
    17  exceed  four  hours  over a twelve hour shift or a fifty hour cumulative
    18  workweek that the home care aide has already  performed,  and  shall  be
    19  subject  to the requirement of consent pursuant to paragraph (b) of this
    20  subdivision.
    21    (b) The agreement of any home care aide to accept  an  assignment  for
    22  more  than  the  maximum  home care hours shall be voluntary. Consent to
    23  accept an assignment for more than the maximum home care hours shall  be
    24  expressly  provided by the employee. Consent to accept an assignment for
    25  more than the maximum home care hours on a specific occasion  shall  not
    26  constitute  implied consent to accept such assignment in the future. The
    27  refusal of a home care aide to accept an assignment for  more  than  the
    28  maximum  home  care  hours  shall  not  be  grounds  for discrimination,
    29  dismissal, discharge, threats, or any other penalty or employment  deci-
    30  sion adverse to the employee.
    31    (c) Where an unforeseeable emergent circumstance is due to the delayed
    32  arrival  of  a  home care aide who is relieving a home care aide who has
    33  worked the maximum number of hours for such day pursuant to  subdivision
    34  two  of this section, such assignment shall not exceed two hours without
    35  acceptance of such overtime pursuant to the provisions of paragraph  (b)
    36  of this subdivision.
    37    (d)  Except  as  provided  for in paragraph (c) of this subdivision, a
    38  staffing shortage may not constitute an unforeseeable  emergent  circum-
    39  stance.
    40    4.  An  employer  shall not threaten, discharge or in any other manner
    41  discriminate, penalize or take adverse action against a home health care
    42  because they have made any complaint that the employee has been required
    43  to accept an assignment for more than the maximum  home  care  hours  in
    44  violation of the provisions of this section:
    45    (a)  to  their  employer,  including  the employer's representative or
    46  agent;
    47    (b) to the commissioner or the department; or
    48    (c) to any other city, state or federal agency.
    49    5. (a) A home care aide may bring a civil action in a court of  compe-
    50  tent jurisdiction against any employer or his or her agent, or the offi-
    51  cer  or  agent  of  any  corporation,  partnership, or limited liability
    52  company, or any other person who violates subdivision two, three or four
    53  of this section. An employer or other person who violates such  subdivi-
    54  sions  shall  be  liable for all legal and/or equitable relief as may be
    55  appropriate to effectuate the purposes of this  section,  including  but
    56  not  limited  to compensatory damages for loss of consortium, liquidated

        A. 3145--A                          3
 
     1  damages, punitive damages, and reinstatement and back wages, in addition
     2  to injunctive relief and any other appropriate relief.  An  employer  or
     3  other  person  who  is  found to have violated subdivision two, three or
     4  four  of this section shall also be liable for the payment of reasonable
     5  attorney's fees.
     6    (b) On behalf of any home care aide, the commissioner  may  bring  any
     7  legal  action  necessary,  including  administrative  action  and  civil
     8  action, to bring a claim for a violation of subdivision  two,  three  or
     9  four  of  this  section. Further, if the commissioner determines that an
    10  employer or employer's agent or the officer or agent of any corporation,
    11  partnership, or limited liability  company,  or  any  other  person  has
    12  violated subdivision two, three or four of this section the commissioner
    13  may issue sanctions and penalties, including, but not limited to compen-
    14  satory  damages for loss of consortium, liquidated damages, and punitive
    15  damages, and  may  also  order  reinstatement,  back  wages,  injunctive
    16  relief, and all other appropriate relief.
    17    § 2. This act shall take effect immediately.
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