At present, state law currently allows 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). On April 14th, 2022, a bill (Int. No. 0175-2022) was introduced that would amend the New York City Fair Workweek law, which currently applies only to fast food and retail employers. If passed, it will take effect 90 days after it becomes law and would 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:
- A single shift exceeding 12 hours;
- Back-to-back 12-hour shifts; or
- Multiple shifts totaling more than 12 hours in any 24-hour period.
- From working more than 50 hours in any single workweek.
The bill defines “home care aides” broadly to include: 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.
Exceptions
The bill’s only exception is for an “unforeseeable emergent circumstance”, in which case, an employer may assign a home care aide to work hours in excess of the maximum under the law, provided that the employer has exhausted all reasonable efforts to obtain proper staffing. However, excess hours cannot exceed two hours per day or 10 hours per week. It should as be noted that a staffing shortage will not be an unforeseeable emergent circumstance.
Next Steps for Employers
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 (see our prior post) could effectively end the ability of any agency to supply 24-hour care. At a minimum, employers need to begin to consider the potential impact this bill would have on their organization, specifically, how to support staffing levels when so many employers in the industry are already impacted by staffing shortages.
Further, consideration may be needed as it relates to recruitment as inevitably, this bill would force many employers to hire more staff in order to comply with these requirements. Employers can hardly think about recruiting without thinking about how to appear competitive, so that they can attract and retain the talent needed in an already tight labor market. For some, the cost of headcount may also be a significant hurdle.
HR Works will continue to monitor this topic and provide updated information as needed.
