On April 14, 2022, New York City Council Member Christopher Marte, along with Public Advocate Jumaane Williams, introduced legislation that would amend the New York City Fair Workweek law (“FWWL”), which currently applies only to fast food and retail employers.  The new amendment, if enacted, would expand the scope of the FWWL to cover employers in the home health care services industry and would undoubtedly upend the way home health care services are provided in New York City.  

The Bill – Int. No. 0175-2022

If adopted, the bill would amend the FWWL and greatly restrict the number of hours a home care aide may be permitted to work in a single workweek.  Specifically, the bill prohibits employers from assigning a home care aide to: (1) a single shift exceeding 12 hours; (2) consecutive 12-hour shifts; or (3) multiple shifts totaling more than 12 hours in any 24-hour period.  The bill further prohibits aides from working more than 50 hours in any single workweek. The bill defines "home care aides" broadly as:

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 activities of daily living, instrumental activities of daily living or health-related tasks, or the provision of companionship or fellowship, excluding any person who provides any such service to a family member.

A “shift” is defined as any period of time during which a home care aide: "(i) is the sole home care aide at the place of employment who is able to provide the services for which the aide is engaged, (ii) is required to be available to provide such services, or (iii) is not permitted to leave the place of employment."

The bill's only exception is for an "unforeseeable emergent circumstance," which is defined as "an unpredictable or unavoidable occurrence that requires immediate action." In such a case, an employer may assign an aide merely two additional hours of work per day—capped at 10 additional hours per workweek—as long as the employer has "exhausted all reasonable efforts to obtain proper staffing." The bill expressly notes that a staffing shortage does not constitute an unforeseeable emergent circumstance.

The bill also voids any contract, agreement, or understanding executed or renewed after its effective date (90 days after it becomes a law) if such instrument requires a home health aide to accept an assignment for hours in excess of the above limitations.

Should the bill pass, the bill empowers the New York City Department of Consumer and Workplace protection to initiate proceedings on behalf of aggrieved home health care aides, and also provides home health care aides with the right to bring a private cause of action to enforce their rights.

The Current State of the Home Care Scheduling

New York State law currently permits employers to schedule home care aides to work 24-hour shifts, commonly referred to as "live in" shifts. Under such an arrangement, the employer need compensate the aide only for 13 hours of work, so long as the aide has an opportunity to receive eight hours of sleep, five hours of which are uninterrupted by a call to work, and three hours of meal breaks. There is no cap on the number of hours an aide may work in a workweek, provided the aide receives one day of rest over a seven-day period (unless the aide consents to work and is paid at an overtime rate for those hours).

Implications

As written, the bill would create several hurdles in the effort to provide safe and effective home care in New York City and cause an even greater shortage of needed aides to care for residents who are sick, infirm, and/or elderly or who may have disabilities. Aside from unilaterally and arbitrarily limiting the number of overtime hours an aide may work in a given work week, thereby limiting an aide’s potential wages, the bill, if passed, would effectively create a situation where home health care agencies would be unable to staff “live-in” cases.  For instance, by allowing only 12-hour shifts and eliminating the traditional “live-in” (24-hour) shift, agencies that work with Medicaid-eligible patients, would have to staff each “live-in” shift with two aides—instead of one—and would receive reimbursement from Medicaid (if applicable) for only 13 of the 24 hours.  The economic impact of this proposed law, along with the upcoming wage increases for aides of $3.00 per hour over the next two years (beginning on October 1, 2022, home care aides are due to receive a $2-an-hour raise and an additional $1-an-hour increase in pay on October 1, 2023), could effectively end the ability of any agency to provide 24-hour care.  Further, those receiving 24-hour care for a full week would be forced to hire four aides where previously they could use one aide all week–a hurdle that could be impossible to navigate due to the obvious economic impact and the severe lack of home care aides in the New York City labor market at the present time. 

At a time when home care agencies are facing a paucity of available home care aides to care for the city’s vulnerable residents, the restrictions proposed by this bill would only exacerbate the existing labor shortage by capping an aide’s ability to earn wages. 

We will monitor the progress of this bill and await the reasoning provided for its introduction.  

Please contact the Littler attorney with whom you regularly work if you have any questions and/or concerns.