NYSDOL Seeks to Save Home Health Aide Pay Structure

11.06.2017

Earlier this year (April and September 2017), the New York State Appellate Division Courts for the First and Second Departments issued Decisions declaring one part of the pay structure for Home Health Aides, compensation for shifts of more than 24 hours in a patient's home, illegal for failing to pay them for all such hours.  These Decisions threaten to upend the industry as home care agencies, managed care plans and government programs may not be able to afford paying for the entire 24 hours, as opposed to the current 13-hour pay rule.  Under the 13-hour pay rule, as long as the Home Health Aides are provided with 8 hours to sleep (at least 5 uninterrupted) and 3 hours for meals, they need only be paid for 13 hours.

The New York State Department of Labor (NYSDOL) reacted to the First and Second Department Decisions on October 25, 2017 by issuing a modification to its Minimum Wage Order for Miscellaneous Occupations (12 NYCRR Part 142 of regulations) further clarifying its interpretation that the sleep and meal periods referenced above are not compensable work time under the federal Fair Labor Standards Act or New York State Labor Law. In explaining why it issued the modification, the NYSDOL said, "[t]his emergency regulation is necessary to preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home".

While the NYSDOL modification clarifying its interpretation is persuasive to the courts, it does not bind them, so we will be carefully tracking whether any of the referenced cases are overturned or if new Decisions are issued. Please do not hesitate to contact us if you have any questions. 

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