Bill Text: NY S00359 | 2021-2022 | General Assembly | Amended
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Introduced - Dead) 2022-01-24 - PRINT NUMBER 359A [S00359 Detail]
Download: New_York-2021-S00359-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 359--A 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sens. PERSAUD, BAILEY, BIAGGI, BRISPORT, BROOKS, BROUK, GIANARIS, HOYLMAN, JACKSON, KAVANAGH, LIU, MAY, MYRIE, RAMOS, RIVERA, SALAZAR, SANDERS, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02124-03-1S. 359--A 2 1 hour period or (ii) any one single shift exceeding twelve hours per 2 twenty-four hour period. 3 2. (a) The provision of care to persons requiring twenty-four hours of 4 care shall take the form of split shifts of twelve hours each. Neither 5 this requirement nor any other requirement in this section shall be used 6 to reduce the hours of authorized care for patients. Notwithstanding 7 any provision of law to the contrary, no employer shall assign a home 8 care aide to more than the maximum home care hours except as provided 9 for in subdivision three of this section. 10 (b) Any requirement of a home care aide to accept an assignment for 11 more than the maximum home care hours contained in any contract, agree- 12 ment or understanding executed or renewed after the effective date of 13 this section shall be void. 14 3. (a) The provisions set forth in subdivision two of this section 15 shall not apply in the case of an unforeseeable emergent circumstance 16 when assignment for more than the maximum home care hours is determined 17 necessary, provided that the employer has exhausted all reasonable 18 efforts to obtain proper staffing. However, such assignment shall not 19 exceed four hours over a twelve hour shift or a fifty hour cumulative 20 workweek that the home care aide has already performed, and shall be 21 subject to the requirement of consent pursuant to paragraph (b) of this 22 subdivision. 23 (b) The agreement of any home care aide to accept an assignment for 24 more than the maximum home care hours shall be voluntary. Consent to 25 accept an assignment for more than the maximum home care hours shall be 26 expressly provided by the employee. Consent to accept an assignment for 27 more than the maximum home care hours on a specific occasion shall not 28 constitute implied consent to accept such assignment in the future. The 29 refusal of a home care aide to accept an assignment for more than the 30 maximum home care hours shall not be grounds for discrimination, 31 dismissal, discharge, threats, or any other penalty or employment deci- 32 sion adverse to the employee. 33 (c) Where an unforeseeable emergent circumstance is due to the delayed 34 arrival of a home care aide who is relieving a home care aide who has 35 worked the maximum number of hours for such day pursuant to subdivision 36 two of this section, such assignment shall not exceed two hours without 37 acceptance of such overtime pursuant to the provisions of paragraph (b) 38 of this subdivision. 39 (d) Except as provided for in paragraph (c) of this subdivision, a 40 staffing shortage may not constitute an unforeseeable emergent circum- 41 stance. 42 4. An employer shall not threaten, discharge or in any other manner 43 discriminate, penalize or take adverse action against a home health care 44 because they have made any complaint that the employee has been required 45 to accept an assignment for more than the maximum home care hours in 46 violation of the provisions of this section: 47 (a) to their employer, including the employer's representative or 48 agent; 49 (b) to the commissioner or the department; or 50 (c) to any other city, state or federal agency. 51 5. (a) A home care aide may bring a civil action in a court of compe- 52 tent jurisdiction against any employer or his or her agent, or the offi- 53 cer or agent of any corporation, partnership, or limited liability 54 company, or any other person who violates subdivision two, three or four 55 of this section. An employer or other person who violates such subdivi- 56 sions shall be liable for all legal and/or equitable relief as may beS. 359--A 3 1 appropriate to effectuate the purposes of this section, including but 2 not limited to compensatory damages for loss of consortium, liquidated 3 damages, punitive damages, and reinstatement and back wages, in addition 4 to injunctive relief and any other appropriate relief. An employer or 5 other person who is found to have violated subdivision two, three or 6 four of this section shall also be liable for the payment of reasonable 7 attorney's fees. 8 (b) On behalf of any home care aide, the commissioner may bring any 9 legal action necessary, including administrative action and civil 10 action, to bring a claim for a violation of subdivision two, three or 11 four of this section. Further, if the commissioner determines that an 12 employer or employer's agent or the officer or agent of any corporation, 13 partnership, or limited liability company, or any other person has 14 violated subdivision two, three or four of this section the commissioner 15 may issue sanctions and penalties, including, but not limited to compen- 16 satory damages for loss of consortium, liquidated damages, and punitive 17 damages, and may also order reinstatement, back wages, injunctive 18 relief, and all other appropriate relief. 19 § 2. This act shall take effect immediately.
