NY State Senate Bill 2023-S6561

Current 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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to labor
Apr 26, 2023	referred to labor

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2023-S6561 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §167-a, Lab L

2023-S6561 (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.

2023-S6561 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S6561

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.

 
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, they
cannot be penalized. Further, it does not mean that they will not accept

or reject overtime in the future. 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.

 
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 and care 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:

2022: S. 395-A amended and recommitted to Senate Labor Committee

2021: S.359 referred to Senate Labor Committee

2020: S.6640 referred to Senate Labor Committee

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined

 
EFFECTIVE DATE:
Immediately.

2023-S6561 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6561
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              April 26, 2023
                                ___________
 
 Introduced  by  Sens.  PERSAUD, BAILEY, BRISPORT, BROUK, GIANARIS, HOYL-
   MAN-SIGAL, 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
 
 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 (I)  CONSECUTIVE  TWELVE-HOUR
 SHIFTS  PER TWENTY-FOUR HOUR PERIOD OR (II) ANY ONE SINGLE SHIFT EXCEED-
 ING TWELVE HOURS PER TWENTY-FOUR HOUR PERIOD.
   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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09991-02-3

 S. 6561                             2
 
   (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.  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, 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
 AIDE  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  OF 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 SUBDIVISION 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. 6561                             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 S6561

Sponsored By

Current Bill Status - In Senate Committee Labor Committee

co-Sponsors

2023-S6561 (ACTIVE) - Details

2023-S6561 (ACTIVE) - Summary

2023-S6561 (ACTIVE) - Sponsor Memo

2023-S6561 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6561

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Sponsored By

Current Bill Status - In Senate Committee Labor Committee

co-Sponsors

2023-S6561 (ACTIVE) - Details

2023-S6561 (ACTIVE) - Summary

2023-S6561 (ACTIVE) - Sponsor Memo

2023-S6561 (ACTIVE) - Bill Text download pdf

Comments