NY State Senate Bill 2021-S359A

Senate Bill S359A

2021-2022 Legislative Session

Requires the provision of care to persons requiring twenty-four hours of care take the form of non-sequential split shifts of twelve hours each

download bill text pdf

Archive: Last 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 24, 2022	print number 359a
Jan 24, 2022	amend and recommit to labor
Jan 05, 2022	referred to labor
Jan 06, 2021	referred to labor

Bill Amendments

Original

A (Active)

co-Sponsors

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2021-S359 - Details

See Assembly Version of this Bill:: A3145
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §167-a, Lab L
Versions Introduced in 2019-2020 Legislative Session:: S6640, A8064

2021-S359 - Summary

Requires the provision of care to persons requiring twenty-four hours of care take the form of non-sequential split shifts of twelve hours each.

2021-S359 - Sponsor Memo

                                
 
BILL NUMBER: S359

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the labor law, in relation to maximum hours for home
care aides

 
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, he or
she cannot be penalized. Further, it does not mean that he or she will
not accept or reject overtime in the future.  There are two exceptions:
if a health care worker wants to stay at a care recipient's apartment
because the replacement care worker is delayed, the current health care
worker can opt to stay for a maximum of 2 hours. 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.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

-Adds definition for "Maximum home care hours"
-Adds "consumer directed personal assistant" to the definition of "home
care aide"
-Makes explicit that a home care aide's acceptance of an assignment for
more than maximum home care hours must be voluntary
-Makes explicit that a staffing shortage may not constitute an "unfore-
seeable circumstance"
-Creates limits to the number of hours over the maximum home care hours
that can be worked by a home care aide in unforeseeable emergent circum-
stances

 
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:

2020: 56640 referred to Senate Labor Committee

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined

 
EFFECTIVE DATE:
Immediately.

2021-S359 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    359
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen. PERSAUD -- 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 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.

                                                            LBD02124-01-1

 S. 359                              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,

 S. 359                              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.

co-Sponsors

View additional co-sponsors

2021-S359A (ACTIVE) - Details

See Assembly Version of this Bill:: A3145
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §167-a, Lab L
Versions Introduced in 2019-2020 Legislative Session:: S6640, A8064

2021-S359A (ACTIVE) - Summary

Requires the provision of care to persons requiring twenty-four hours of care take the form of non-sequential split shifts of twelve hours each.

2021-S359A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S359A

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.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

-Adds definition for "Maximum home care hours"
-Adds "consumer directed personal assistant" to the definition of "home
care aide"
-Makes explicit that a home care aide's acceptance of an assignment for
more than maximum home care hours must be voluntary
-Makes explicit that a staffing shortage may not constitute an "unfore-
seeable circumstance"
-Creates limits to the number of hours over the maximum home care hours
that can be worked by a home care aide in unforeseeable emergent circum-
stances

 
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:

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.

2021-S359A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  359--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens.  PERSAUD, BAILEY, BIAGGI, BRISPORT, BROOKS, BROUK,
   GIANARIS, HOYLMAN, 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 -- recommitted to
   the Committee on Labor in accordance with Senate Rule  6,  sec.  8  --
   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 NOT EXCEED FIFTY HOURS PER WEEK
 AND MAY NOT INCLUDE (I) CONSECUTIVE TWELVE HOUR SHIFTS PER   TWENTY-FOUR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD02124-03-1
 S. 359--A                           2
 
 HOUR  PERIOD  OR  (II)  ANY  ONE SINGLE SHIFT EXCEEDING TWELVE HOURS PER
 TWENTY-FOUR HOUR PERIOD.
   2. (A) THE PROVISION OF CARE TO PERSONS REQUIRING TWENTY-FOUR HOURS OF
 CARE  SHALL  TAKE THE FORM OF SPLIT SHIFTS OF TWELVE HOURS EACH. NEITHER
 THIS REQUIREMENT NOR ANY OTHER REQUIREMENT IN THIS SECTION SHALL BE USED
 TO REDUCE THE HOURS OF AUTHORIZED CARE FOR  PATIENTS.    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 THREE OF THIS SECTION.
   (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.  (A) THE PROVISIONS SET FORTH IN SUBDIVISION TWO  OF  THIS  SECTION
 SHALL  NOT  APPLY  IN THE 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 PARAGRAPH (B) OF THIS
 SUBDIVISION.
   (B) 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 SHALL  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.
   (C) 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 PARAGRAPH  (B)
 OF THIS SUBDIVISION.
   (D)  EXCEPT  AS  PROVIDED  FOR IN PARAGRAPH (C) OF THIS SUBDIVISION, A
 STAFFING SHORTAGE MAY NOT CONSTITUTE AN UNFORESEEABLE  EMERGENT  CIRCUM-
 STANCE.
   4.  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.
   5. (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 OR FOUR
 OF THIS SECTION. AN EMPLOYER OR OTHER PERSON WHO VIOLATES SUCH  SUBDIVI-
 SIONS  SHALL  BE  LIABLE FOR ALL LEGAL AND/OR EQUITABLE RELIEF AS MAY BE
 S. 359--A                           3
 
 APPROPRIATE TO EFFECTUATE THE PURPOSES OF THIS  SECTION,  INCLUDING  BUT
 NOT  LIMITED  TO COMPENSATORY DAMAGES FOR LOSS OF CONSORTIUM, LIQUIDATED
 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  OR
 FOUR  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  OR
 FOUR  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 OR FOUR OF THIS SECTION THE COMMISSIONER
 MAY ISSUE SANCTIONS AND PENALTIES, INCLUDING, BUT NOT LIMITED TO COMPEN-
 SATORY  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 S359A

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Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

2021-S359 - Details

2021-S359 - Summary

2021-S359 - Sponsor Memo

2021-S359 - Bill Text download pdf

co-Sponsors

2021-S359A (ACTIVE) - Details

2021-S359A (ACTIVE) - Summary

2021-S359A (ACTIVE) - Sponsor Memo

2021-S359A (ACTIVE) - Bill Text download pdf

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