NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3145A
SPONSOR: Epstein 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 medi-
cally-related tasks. Further, burn-out, occupational related illnesses
and high turnover among workers lowers the quality and continuity of
care received by care recipients.
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:
2020:A8064A/S06640 referred to labor/REFERRED TO RULES 2019:
A8064A/S06640 - referred to labor/REFERRED TO LABOR
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined
EFFECTIVE DATE:
Immediately.
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.
