Bill Text: NY A08064 | 2019-2020 | General Assembly | Amended

Bill Title: Places limits on the maximum amount of hours a home care aide may be required to work without voluntarily consenting to such an assignment.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2019-07-08 - print number 8064a [A08064 Detail]

Download: New_York-2019-A08064-Amended.html

                STATE OF NEW YORK


                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 31, 2019

        Introduced by M. of A. EPSTEIN, BRONSON, REYES -- 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 mean a single shift that consists
    19  of twelve hours per day or multiple shifts  that  in  combination  total
    20  fifty hours per week.
    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.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8064--A                          2

     1    (b)  Any  requirement  of a home care aide to accept an assignment for
     2  more than the maximum home care hours contained in any contract,  agree-
     3  ment  or  understanding  executed or renewed after the effective date of
     4  this section shall be void.
     5    3.  The  agreement  of  any home care aide to accept an assignment for
     6  more than the maximum home care hours shall be voluntary.    Consent  to
     7  accept  an  assignment for more than the maximum home care hours must be
     8  expressly provided by the employee.  Consent to accept an assignment for
     9  more than the maximum home care hours on a specific occasion  shall  not
    10  constitute  implied consent to accept such assignment in the future. The
    11  refusal of a home care aide to accept an assignment for  more  than  the
    12  maximum  home  care  hours  shall  not  be  grounds  for discrimination,
    13  dismissal, discharge, threats, or any other penalty or employment  deci-
    14  sion adverse to the employee.
    15    4.  (a)  The  provisions  set forth in subdivision two of this section
    16  shall not apply in case of an unforeseeable emergent  circumstance  when
    17  assignment  for  more  than  the  maximum  home care hours is determined
    18  necessary, provided that  the  employer  has  exhausted  all  reasonable
    19  efforts  to  obtain  proper staffing. However, such assignment shall not
    20  exceed four hours over a twelve-hour shift or  a  fifty-hour  cumulative
    21  workweek  that  the  home  care aide has already performed, and shall be
    22  subject to the requirement of consent pursuant to subdivision  three  of
    23  this section.
    24    (b) Where an unforeseeable emergent circumstance is due to the delayed
    25  arrival  of  a  home care aide who is relieving a home care aide who has
    26  worked the maximum number of hours for such day pursuant to  subdivision
    27  two  of this section, such assignment shall not exceed two hours without
    28  acceptance of such overtime pursuant to the  provisions  of  subdivision
    29  three of this section.
    30    (c)  Except  as  provided  for in paragraph (b) of this subdivision, a
    31  staffing shortage may not constitute an unforeseeable circumstance.
    32    5. An employer shall not threaten, discharge or in  any  other  manner
    33  discriminate, penalize or take adverse action against a home health care
    34  because they have made any complaint that the employee has been required
    35  to  accept  an  assignment  for more than the maximum home care hours in
    36  violation of the provisions of this section:
    37    (a) to their employer,  including  the  employer's  representative  or
    38  agent;
    39    (b) to the commissioner or the department; or
    40    (c) to any other city, state or federal agency.
    41    6.  (a) A home care aide may bring a civil action in a court of compe-
    42  tent jurisdiction against any employer or his or her agent, or the offi-
    43  cer or agent of  any  corporation,  partnership,  or  limited  liability
    44  company,  or any other person who violates subdivision two, three, four,
    45  or five this section. An employer or  other  person  who  violates  such
    46  subdivisions  shall  be  liable for all legal and/or equitable relief as
    47  may be appropriate to effectuate the purposes of this section, including
    48  but not limited to compensatory damages for loss of  consortium,  liqui-
    49  dated  damages,  punitive  damages, and reinstatement and back wages, in
    50  addition to injunctive relief  and  any  other  appropriate  relief.  An
    51  employer  or other person who is found to have violated subdivision two,
    52  three, four or five of this section shall also be liable for the payment
    53  of reasonable attorney's fees.
    54    (b) On behalf of any home care aide, the commissioner  may  bring  any
    55  legal  action  necessary,  including  administrative  action  and  civil
    56  action, to bring a claim for a violation  of  subdivisions  two,  three,

        A. 8064--A                          3

     1  four,  or  five of this section. Further, if the commissioner determines
     2  that an employer or employer's agent or the  officer  or  agent  of  any
     3  corporation,  partnership,  or  limited  liability company, or any other
     4  person has violated subdivision two, three, four or five of this section
     5  the  commissioner  may issue sanctions and penalties, including, but not
     6  limited to compensatory  damages  for  loss  of  consortium,  liquidated
     7  damages,  and  punitive  damages, and may also order reinstatement, back
     8  wages, injunctive relief, and all other appropriate relief.
     9    § 2. This act shall take effect immediately.