The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3145--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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:
 
   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 NOT EXCEED FIFTY  HOURS  PER  WEEK
 AND  MAY NOT INCLUDE (I) CONSECUTIVE TWELVE HOUR SHIFTS PER  TWENTY-FOUR
 HOUR PERIOD OR (II) ANY ONE SINGLE  SHIFT  EXCEEDING  TWELVE  HOURS  PER
 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
 
   2. (A) THE PROVISION OF CARE TO PERSONS REQUIRING TWENTY-FOUR HOURS OF
 CARE  SHALL  TAKE THE FORM OF SPLIT SHIFTS OF TWELVE HOURS EACH. NEITHER
 THIS REQUIREMENT NOR ANY OTHER REQUIREMENT IN THIS SECTION SHALL BE USED
 TO REDUCE THE HOURS OF AUTHORIZED CARE FOR  PATIENTS.    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 THREE 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-
 MENT  OR  UNDERSTANDING  EXECUTED OR RENEWED AFTER THE EFFECTIVE DATE OF
 THIS SECTION SHALL BE VOID.
   3.  (A) THE PROVISIONS SET FORTH IN SUBDIVISION TWO  OF  THIS  SECTION
 SHALL  NOT  APPLY  IN THE 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 PARAGRAPH (B) OF THIS
 SUBDIVISION.
   (B) 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 SHALL  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.
   (C) 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 PARAGRAPH  (B)
 OF THIS SUBDIVISION.
   (D)  EXCEPT  AS  PROVIDED  FOR IN PARAGRAPH (C) OF THIS SUBDIVISION, A
 STAFFING SHORTAGE MAY NOT CONSTITUTE AN UNFORESEEABLE  EMERGENT  CIRCUM-
 STANCE.
   4.  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.
   5. (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 OR FOUR
 OF THIS SECTION. AN EMPLOYER OR OTHER PERSON WHO VIOLATES SUCH  SUBDIVI-
 SIONS  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, LIQUIDATED

 A. 3145--A                          3
 
 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 OR
 FOUR  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 SUBDIVISION  TWO,  THREE  OR
 FOUR  OF  THIS  SECTION. FURTHER, IF THE COMMISSIONER DETERMINES THAT AN
 EMPLOYER OR EMPLOYER'S AGENT OR THE OFFICER OR AGENT OF ANY CORPORATION,
 PARTNERSHIP, OR LIMITED LIABILITY  COMPANY,  OR  ANY  OTHER  PERSON  HAS
 VIOLATED SUBDIVISION TWO, THREE OR FOUR OF THIS SECTION THE COMMISSIONER
 MAY ISSUE SANCTIONS AND PENALTIES, INCLUDING, BUT NOT LIMITED TO COMPEN-
 SATORY  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.