S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8064--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 31, 2019
                                ___________
 
 Introduced by M. of A. EPSTEIN, BRONSON, REYES -- 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 MEAN A SINGLE SHIFT THAT CONSISTS
 OF TWELVE HOURS PER DAY OR MULTIPLE SHIFTS  THAT  IN  COMBINATION  TOTAL
 FIFTY HOURS PER WEEK.
   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.
                                                            LBD13045-02-9
              

 A. 8064--A                          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 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 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
 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 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  SUBDIVISIONS  TWO,  THREE,

 A. 8064--A                          3
 
 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
 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.