Bill Text: NY A10618 | 2023-2024 | General Assembly | Introduced

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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 2-0)

Status: (Introduced) 2024-06-20 - referred to labor [A10618 Detail]

Download: New_York-2023-A10618-Introduced.html

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                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.