Sleep and meal times do not need to be counted as hours worked in a 24-hour shift for caregivers in New York, according to the latest statement from the state’s Department of Labor (DOL).
The statement supplements an October 6 emergency regulation update regarding the state’s 24-hour/live-in care, in which the NY DOL re-emphasized the long-standing practice in the state that caregivers who work a 24-hour shift need only be paid for 13 hours worked. This rule allowed home care providers to count sleep and meal times as hours not worked, and to continue to provide 24-hour care, or live-in care, at feasible prices.
However, two recent court cases in the state threatened to reverse that practice, instead ruling that caregivers should be paid for all 24 hours of a live-in shift—including back pay. The ruling could have “collapsed” the home care industry in New York, according to some.
The DOL’s most recent statement reaffirms the 13-hour rule regulation.
“This emergency regulation is needed to preserve the status quo, prevent the collapse of the home care industry and avoid institutionalizing patients who could be cared for at home, in the face of recent decisions by the State Appellate Divisions that treat meal periods and sleep time by home care aides who work shifts of 24 hours or more as hours worked for purposes of state (but not federal) minimum wage,” the DOL’s October statement said. “This emergency adoption amends the relevant regulations to codify the Commissioner’s longstanding and consistent interpretations that such meal periods and sleep times do not constitute hours worked for purposes of minimum wage and overtime requirements.”
The DOL issued its statement on fears that the court’s decision would cause providers to cease caregiving operations, “thereby threatening the continued operation of this industry that employs and serves thousands of New Yorkers by providing vital, lifesaving services and averting the institutionalization of those who could otherwise be cared for at home,” the October 6 statement reads.
While the statement is clear that the 13-hour rule applies to 24-hour cases going forward, home care providers in the state are still unclear what this means for retroactive pay. The DOL emergency regulation could play a role in court cases in the future.
“While the regulation does not expressly provide for a retroactive effective date, the provisions of the regulatory intent present a clear desire for maintaining the status quo and codifying the DOL Commissioner’s guidance…” The Home Care Association of New York State (HCA-NYS) wrote in a letter to its members on the issue.
While the update disavows the courts’ decisions, further interpretations are needed.
“This is certainly a step in the right direction by the NYDOL, but more steps remain before the home care industry’s concerns are allayed,” reads an update from Littler, a legal firm specializing in home care and health care. “While the emergency regulation may ‘preserve the status quo,’ advocacy groups for home care aides and others have threatened to challenge the emergency regulation and to try to keep it from becoming permanent. Because the emergency regulation does not contain language making it retroactive, employers that previously relied on the 13-hour rule are concerned about potential liability for unpaid wages if the Court of Appeals does not eventually reverse the Appellate Division decisions.”
The DOL’s emergency regulation goes into effect immediately for a period of 90 days, “at which point it could be promulgated again on an emergency basis; or the department could work to promulgate a final version of the regulation,” Roger Noyes, director of communications of HCA-NYS, told Home Health Care News. “Typically, a department of jurisdiction will post a proposed final regulation at some point during the cycle of an emergency regulation.”
Written by Amy Baxter