NY State Senate Bill 2019-S6640

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to labor
Jul 31, 2019	referred to rules

co-Sponsors

2019-S6640 (ACTIVE) - Details

See Assembly Version of this Bill:: A8064
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §167-a, Lab L
Versions Introduced in 2021-2022 Legislative Session:: S359, A3145

2019-S6640 (ACTIVE) - Summary

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

2019-S6640 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6640

SPONSOR: PERSAUD
 
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. The bill also provides for legal
relief if an employer requires a health aide to work more than 12 hours
per day or 50 hours in a week or threatens them 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.  There are two exceptions:
if a health care worker wants to stay at a care recipients apartment
because the replacement care worker is delayed, the current health care
worker can opt to stay for a maximum of 2 hours. Finally, the bill
allows the aide to bring a civil action against his or her employer for
violating their freedom to refuse overtime and a range of damages.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

-Adds definition for "Maximum home care hours"
-Adds "consumer directed personal assistant" to the definition of "home
care aide"
-Makes explicit that a home care aide's acceptance of an assignment for
more than maximum home care hours must be voluntary
-Makes explicit that a staffing shortage may not constitute an "unfore-
seeable circumstance"
-Creates limits to the number of hours over the maximum home care hours
that can be worked by a home care aide in unforeseeable emergent circum-
stances

 
JUSTIFICATION:

Home care workers in New York are essential to maintaining the daily
wellbeing 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 andcarp 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:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined

 
EFFECTIVE DATE:
Immediately.

2019-S6640 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6640
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               July 31, 2019
                                ___________
 
 Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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:

   Section 1. The labor law is amended by adding a new section  167-a  to
 read as follows:
   §  167-A.  HOURS OF LABOR FOR HOME CARE AIDES. 1. FOR PURPOSES OF THIS
 SECTION: (A) "HOME CARE AIDE" MEANS A HOME HEALTH  AIDE,  PERSONAL  CARE
 AIDE,  PERSONAL  CARE  ATTENDANT,  CONSUMER DIRECTED PERSONAL ASSISTANT,
 HOME ATTENDANT OR OTHER LICENSED  OR  UNLICENSED  PERSON  WHOSE  PRIMARY
 RESPONSIBILITY  INCLUDES THE PROVISION OF IN-HOME ASSISTANCE WITH ACTIV-
 ITIES OF DAILY  LIVING,  INSTRUMENTAL  ACTIVITIES  OF  DAILY  LIVING  OR
 HEALTH-RELATED  TASKS,  OR THE PROVISION OF COMPANIONSHIP OR FELLOWSHIP.
 THE PROVISIONS OF THIS SECTION SHALL APPLY EQUALLY TO SERVICES  PROVIDED
 BY  HOME  CARE AIDES WHO WORK ON EPISODES OF CARE AS DIRECT EMPLOYEES OF
 THE CARE RECIPIENT, CERTIFIED  HOME  HEALTH  AGENCIES,  LONG  TERM  HOME
 HEALTH CARE PROGRAMS, OR MANAGED CARE PLANS, OR AS EMPLOYEES OF LICENSED
 HOME  CARE  SERVICES AGENCIES, LIMITED LICENSED HOME CARE SERVICES AGEN-
 CIES, OR UNDER ANY OTHER ARRANGEMENT.
   (B) "UNFORESEEABLE EMERGENT CIRCUMSTANCE" MEANS  AN  UNPREDICTABLE  OR
 UNAVOIDABLE OCCURRENCE THAT REQUIRES IMMEDIATE ACTION.
   (C)  "MAXIMUM HOME CARE HOURS" SHALL MEAN A SINGLE SHIFT THAT CONSISTS
 OF TWELVE HOURS PER DAY OR MULTIPLE SHIFTS  THAT  IN  COMBINATION  TOTAL
 FIFTY HOURS PER WEEK.
   2.  (A)  NOTWITHSTANDING  ANY  PROVISION  OF  LAW  TO THE CONTRARY, NO
 EMPLOYER SHALL ASSIGN A HOME CARE AIDE TO MORE  THAN  THE  MAXIMUM  HOME
 CARE HOURS EXCEPT AS PROVIDED FOR IN SUBDIVISION FOUR OF THIS SECTION.
   (B)  ANY  REQUIREMENT  OF A HOME CARE AIDE TO ACCEPT AN ASSIGNMENT FOR
 MORE THAN THE MAXIMUM HOME CARE HOURS CONTAINED IN ANY CONTRACT,  AGREE-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13045-03-9

 S. 6640                             2
 
 MENT  OR  UNDERSTANDING  EXECUTED OR RENEWED AFTER THE EFFECTIVE DATE OF
 THIS SECTION SHALL BE VOID.
   3.  THE  AGREEMENT  OF  ANY HOME CARE AIDE TO ACCEPT AN ASSIGNMENT FOR
 MORE THAN THE MAXIMUM HOME CARE HOURS SHALL BE VOLUNTARY.    CONSENT  TO
 ACCEPT  AN  ASSIGNMENT FOR MORE THAN THE MAXIMUM HOME CARE HOURS MUST BE
 EXPRESSLY PROVIDED BY THE EMPLOYEE.  CONSENT TO ACCEPT AN ASSIGNMENT FOR
 MORE THAN THE MAXIMUM HOME CARE HOURS ON A SPECIFIC OCCASION  SHALL  NOT
 CONSTITUTE  IMPLIED CONSENT TO ACCEPT SUCH ASSIGNMENT IN THE FUTURE. THE
 REFUSAL OF A HOME CARE AIDE TO ACCEPT AN ASSIGNMENT FOR  MORE  THAN  THE
 MAXIMUM  HOME  CARE  HOURS  SHALL  NOT  BE  GROUNDS  FOR DISCRIMINATION,
 DISMISSAL, DISCHARGE, THREATS, OR ANY OTHER PENALTY OR EMPLOYMENT  DECI-
 SION ADVERSE TO THE EMPLOYEE.
   4.  (A)  THE  PROVISIONS  SET FORTH IN SUBDIVISION TWO OF THIS SECTION
 SHALL NOT APPLY IN CASE OF AN UNFORESEEABLE EMERGENT  CIRCUMSTANCE  WHEN
 ASSIGNMENT  FOR  MORE  THAN  THE  MAXIMUM  HOME CARE HOURS IS DETERMINED
 NECESSARY, PROVIDED THAT  THE  EMPLOYER  HAS  EXHAUSTED  ALL  REASONABLE
 EFFORTS  TO  OBTAIN  PROPER STAFFING. HOWEVER, SUCH ASSIGNMENT SHALL NOT
 EXCEED FOUR HOURS OVER A TWELVE-HOUR SHIFT OR  A  FIFTY-HOUR  CUMULATIVE
 WORKWEEK  THAT  THE  HOME  CARE AIDE HAS ALREADY PERFORMED, AND SHALL BE
 SUBJECT TO THE REQUIREMENT OF CONSENT PURSUANT TO SUBDIVISION  THREE  OF
 THIS SECTION.
   (B) WHERE AN UNFORESEEABLE EMERGENT CIRCUMSTANCE IS DUE TO THE DELAYED
 ARRIVAL  OF  A  HOME CARE AIDE WHO IS RELIEVING A HOME CARE AIDE WHO HAS
 WORKED THE MAXIMUM NUMBER OF HOURS FOR SUCH DAY PURSUANT TO  SUBDIVISION
 TWO  OF THIS SECTION, SUCH ASSIGNMENT SHALL NOT EXCEED TWO HOURS WITHOUT
 ACCEPTANCE OF SUCH OVERTIME PURSUANT TO THE  PROVISIONS  OF  SUBDIVISION
 THREE OF THIS SECTION.
   (C)  EXCEPT  AS  PROVIDED  FOR IN PARAGRAPH (B) OF THIS SUBDIVISION, A
 STAFFING SHORTAGE MAY NOT CONSTITUTE AN UNFORESEEABLE CIRCUMSTANCE.
   5. AN EMPLOYER SHALL NOT THREATEN, DISCHARGE OR IN  ANY  OTHER  MANNER
 DISCRIMINATE, PENALIZE OR TAKE ADVERSE ACTION AGAINST A HOME HEALTH CARE
 BECAUSE THEY HAVE MADE ANY COMPLAINT THAT THE EMPLOYEE HAS BEEN REQUIRED
 TO  ACCEPT  AN  ASSIGNMENT  FOR MORE THAN THE MAXIMUM HOME CARE HOURS IN
 VIOLATION OF THE PROVISIONS OF THIS SECTION:
   (A) TO THEIR EMPLOYER,  INCLUDING  THE  EMPLOYER'S  REPRESENTATIVE  OR
 AGENT;
   (B) TO THE COMMISSIONER OR THE DEPARTMENT; OR
   (C) TO ANY OTHER CITY, STATE OR FEDERAL AGENCY.
   6.  (A) A HOME CARE AIDE MAY BRING A CIVIL ACTION IN A COURT OF COMPE-
 TENT JURISDICTION AGAINST ANY EMPLOYER OR HIS OR HER AGENT, OR THE OFFI-
 CER OR AGENT OF  ANY  CORPORATION,  PARTNERSHIP,  OR  LIMITED  LIABILITY
 COMPANY,  OR ANY OTHER PERSON WHO VIOLATES SUBDIVISION TWO, THREE, FOUR,
 OR FIVE THIS SECTION. AN EMPLOYER OR  OTHER  PERSON  WHO  VIOLATES  SUCH
 SUBDIVISIONS  SHALL  BE  LIABLE FOR ALL LEGAL AND/OR EQUITABLE RELIEF AS
 MAY BE APPROPRIATE TO EFFECTUATE THE PURPOSES OF THIS SECTION, INCLUDING
 BUT NOT LIMITED TO COMPENSATORY DAMAGES FOR LOSS OF  CONSORTIUM,  LIQUI-
 DATED  DAMAGES,  PUNITIVE  DAMAGES, AND REINSTATEMENT AND BACK WAGES, IN
 ADDITION TO INJUNCTIVE RELIEF  AND  ANY  OTHER  APPROPRIATE  RELIEF.  AN
 EMPLOYER  OR OTHER PERSON WHO IS FOUND TO HAVE VIOLATED SUBDIVISION TWO,
 THREE, FOUR OR FIVE OF THIS SECTION SHALL ALSO BE LIABLE FOR THE PAYMENT
 OF REASONABLE ATTORNEY'S FEES.
   (B) ON BEHALF OF ANY HOME CARE AIDE, THE COMMISSIONER  MAY  BRING  ANY
 LEGAL  ACTION  NECESSARY,  INCLUDING  ADMINISTRATIVE  ACTION  AND  CIVIL
 ACTION, TO BRING A CLAIM FOR A VIOLATION  OF  SUBDIVISIONS  TWO,  THREE,
 FOUR,  OR  FIVE OF THIS SECTION. FURTHER, IF THE COMMISSIONER DETERMINES
 THAT AN EMPLOYER OR EMPLOYER'S AGENT OR THE  OFFICER  OR  AGENT  OF  ANY

 S. 6640                             3
 
 CORPORATION,  PARTNERSHIP,  OR  LIMITED  LIABILITY COMPANY, OR ANY OTHER
 PERSON HAS VIOLATED SUBDIVISION TWO, THREE, FOUR OR FIVE OF THIS SECTION
 THE COMMISSIONER MAY ISSUE SANCTIONS AND PENALTIES, INCLUDING,  BUT  NOT
 LIMITED  TO  COMPENSATORY  DAMAGES  FOR  LOSS  OF CONSORTIUM, LIQUIDATED
 DAMAGES, AND PUNITIVE DAMAGES, AND MAY ALSO  ORDER  REINSTATEMENT,  BACK
 WAGES, INJUNCTIVE RELIEF, AND ALL OTHER APPROPRIATE RELIEF.
   § 2. This act shall take effect immediately.

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Senate Bill S6640

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

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co-Sponsors

2019-S6640 (ACTIVE) - Details

2019-S6640 (ACTIVE) - Summary

2019-S6640 (ACTIVE) - Sponsor Memo

2019-S6640 (ACTIVE) - Bill Text download pdf

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Sponsored By

Roxanne J. Persaud

Archive: Last Bill Status - In Senate Committee Labor Committee

Actions

co-Sponsors

David Carlucci

Robert Jackson

Zellnor Myrie

James Sanders Jr.

2019-S6640 (ACTIVE) - Details

2019-S6640 (ACTIVE) - Summary

2019-S6640 (ACTIVE) - Sponsor Memo

2019-S6640 (ACTIVE) - Bill Text download pdf

Comments