The New York State Supreme Court ruled on April 11 that caregivers can be paid for sleep and mealtimes in a 24-hour shift, representing a major upset for home care providers if the decision is upheld.
Previously, caregivers in New York were entitled to 13 hours of pay for a 24-hour shift, if the home health aide was allowed eight hours of sleep with at least five hours uninterrupted. The ruling upends the long-standing practice by the New York State Department of Labor, and could have greater implications around the country.
Specifically, the court ruled that home health aides employed by an an agency are not “residential” employees under New York law, and therefore could be eligible for backpay from the last six years.
The case, Tokhtaman v. HumanCare, LLC, stems from a home care aide employed by HumanCare who alleged she did not fall within the category of employees who are only paid for 13 hours of a 24-hour caregiving shift. HumanCare is a fully licensed home health care provider in New York.
The decision comes as industry groups are preparing to redouble efforts to overturn national DOL regulations that extended minimum wage and overtime protections to nearly two million home care workers in 2015.
For home health providers in New York, the added costs as a result of the ruling could be huge.
“This case has potential far-reaching impacts on the costs of services,” Roger Noyes, director of communications at the Home Care Association of New York (HCA) told HHCN. “For those providers that do have a high concentration of 24-hour, live-in cases, the new costs would be enormous.”
However, data on the prevalence of 24-hour, live-in caregiving is not entirely conclusive across the industry, according to Noyes.
In its ruling, the court decided a widely cited state Department of Labor (DOL) opinion letter from 2010 conflicted with DOL regulations. The regulations require that employees are paid minimum wage for each hour they are required to be available for work at a designated place. A “residential employee,” or an employee that doesn’t live on the premises of the employer, is not required to be paid during sleeping hours when not on call.
HumanCare wasn’t able to successfully defend that a live-in aide should only be paid for 13 hours of a 24-hours shift, based on the opinion letter. The court noted that the opinion doesn’t distinguish between residential and non-residential employees.
“Consequently, the court held that if the live-in aide can demonstrate that she was a nonresidential employee, she could recover unpaid wages for hours worked in excess of 13 hours a day,” HCA wrote in its newsletter to members.
A similar case, Adryeyeva v. New York Health Care, Inc., is currently on appeal. Should this case be appealed, the decision could be left to the New York Appeals Court.
To make this ruling work, the state will have to up its Medicaid reimbursements for 24-hour shifts. Home care providers could also potentially limit their live-in services or eliminate 24-hour shifts altogether.
“If the Tokhtaman or other rulings hold, this will add significant new labor costs and regulatory distinctions that the state needs to sort out both in terms of its published requirements for providers and in its establishment of Medicaid rates to cover labor costs,” Noyes said. “Otherwise, providers are left in limbo as far as the requirements while subject to a hole in reimbursement for meeting the costs of compliance.”
Written by Amy Baxter