STATE OF NEW YORK ________________________________________________________________________ 6899 2023-2024 Regular Sessions IN ASSEMBLY May 8, 2023 ___________ Introduced by M. of A. EPSTEIN -- read once and referred to the Commit- tee 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09991-02-3

A. 6899 2 1 ment or understanding executed or renewed after the effective date of 2 this section shall be void. 3 3. The agreement of any home care aide to accept an assignment for 4 more than the maximum home care hours shall be voluntary. Consent to 5 accept an assignment for more than the maximum home care hours must be 6 expressly provided by the employee. Consent to accept an assignment for 7 more than the maximum home care hours on a specific occasion shall not 8 constitute implied consent to accept such assignment in the future. The 9 refusal of a home care aide to accept an assignment for more than the 10 maximum home care hours shall not be grounds for discrimination, 11 dismissal, discharge, threats, or any other penalty or employment deci- 12 sion adverse to the employee. 13 4. (a) The provisions set forth in subdivision two of this section 14 shall not apply in case of an unforeseeable emergent circumstance when 15 assignment for more than the maximum home care hours is determined 16 necessary, provided that the employer has exhausted all reasonable 17 efforts to obtain proper staffing. However, such assignment shall not 18 exceed four hours over a twelve-hour shift, and shall be subject to the 19 requirement of consent pursuant to subdivision three of this section. 20 (b) Where an unforeseeable emergent circumstance is due to the delayed 21 arrival of a home care aide who is relieving a home care aide who has 22 worked the maximum number of hours for such day pursuant to subdivision 23 two of this section, such assignment shall not exceed two hours without 24 acceptance of such overtime pursuant to the provisions of subdivision 25 three of this section. 26 (c) Except as provided for in paragraph (b) of this subdivision, a 27 staffing shortage may not constitute an unforeseeable circumstance. 28 5. An employer shall not threaten, discharge or in any other manner 29 discriminate, penalize or take adverse action against a home health care 30 aide because they have made any complaint that the employee has been 31 required to accept an assignment for more than the maximum home care 32 hours in violation of the provisions of this section: 33 (a) to their employer, including the employer's representative or 34 agent; 35 (b) to the commissioner or the department; or 36 (c) to any other city, state or federal agency. 37 6. (a) A home care aide may bring a civil action in a court of compe- 38 tent jurisdiction against any employer or his or her agent, or the offi- 39 cer or agent of any corporation, partnership, or limited liability 40 company, or any other person who violates subdivision two, three, four, 41 or five of this section. An employer or other person who violates such 42 subdivisions shall be liable for all legal and/or equitable relief as 43 may be appropriate to effectuate the purposes of this section, including 44 but not limited to compensatory damages for loss of consortium, liqui- 45 dated damages, punitive damages, and reinstatement and back wages, in 46 addition to injunctive relief and any other appropriate relief. An 47 employer or other person who is found to have violated subdivision two, 48 three, four or five of this section shall also be liable for the payment 49 of reasonable attorney's fees. 50 (b) On behalf of any home care aide, the commissioner may bring any 51 legal action necessary, including administrative action and civil 52 action, to bring a claim for a violation of subdivision two, three, 53 four, or five of this section. Further, if the commissioner determines 54 that an employer or employer's agent or the officer or agent of any 55 corporation, partnership, or limited liability company, or any other 56 person has violated subdivision two, three, four or five of this section

A. 6899 3 1 the commissioner may issue sanctions and penalties, including, but not 2 limited to compensatory damages for loss of consortium, liquidated 3 damages, and punitive damages, and may also order reinstatement, back 4 wages, injunctive relief, and all other appropriate relief. 5 § 2. This act shall take effect immediately.

Relates to the maximum hours for home care aides

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