On March 26, 2019, the New York Court of Appeals ruled that home health aides are not entitled to payment for sleep and a break even if they are working a 24-hour shift. The decision relied on an interpretation of the New York State Department of Labor’s (DOL) Miscellaneous Industries and Occupations Minimum Wage Order (Wage Order). Specifically, the issue in the case involved whether employers are required to pay each hour of a 24-hour shift; or if they are only required to pay 13 hours if the worker is given an 8 hour sleep break, in which they are given 5 interrupted hours of sleep, and three hours of meal break time.
The Court began its analysis by reviewing New York’s Labor Law which requires that all employees across the state be paid a minimum wage for each hour worked. The Act, which was passed in 1937, was aimed at assuring employees are given a wage that is sufficient to protect their health. The New York State Legislature expanded the Act in 1971 to cover home health care aides which are living outside of the employer’s home. Under the Act, the Commissioner of Labor is given the authority to issue “wage orders” which act as regulations that dictate the application of the Labor Law.
Under the DOL’s Minimum Wage Order Number 11, home health aide workers “shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of an employee.” The Order goes on to state that residential employees, “shall not be deemed permitted to work or be available to work: during the employee’s normal sleeping hours, even if on call; or at any other time when the employee is free to leave the place of employment.”
In 2010, the DOL issued responses to questions about the application of the above Wage Order as it applies to home health care aides, specifically how it applies to home health care aides that are assigned to a patient’s home. The opinion letter made a clear distinction between employees who are “on call,” meaning employees who are considered to be working all hours they are required to maintain in their work area; and employees who are “subject to call,” meaning employees who are able to leave the work area between assignments.
In the case of home health workers, the Court found that the hours in which they are sleeping, if they are given 5 consecutive hours of sleep, along with their meal breaks, are not hours in which their employer needs to pay them as they are merely “subject to call.” A brief submitted in the case stated: “an employee who enjoys genuine sleep and meal breaks consistent with the DOL’s policy, is not meaningfully available for work during those breaks.” Thus, where a home health aide is given 8 hours of meaningful sleep and 3 hour-long meal breaks, then they are only entitled to payment for 13 hours of work.
The case will have a major effect on the payment of home health aides in the future. The Court concluded by stating that if an aide is not given a minimum break, or is not given the requisite hours of sleep, then they are entitled to payment for a full 24 hour period. Therefore, the decision will not only have lasting implications on the reimbursement of home health aides but also, the payment of home health aides going forward.
To read a full copy of the decision, click here.
If you or a loved one have questions regarding the proper payment due to a home health aide, it is important to contact an experienced elder law attorney. The lawyers at Hobson-Williams, P.C. are skilled in all aspects of Elder Law and Medicaid Planning and are dedicated to representing its clients with diligence and compassion. Contact the experienced New York attorneys at Hobson-Williams, P.C. for a consultation by calling (718) 210-4744 or by filling out our contact form.
Written by Tanya Hobson-Williams
Appointed to the bench by the Board of Trustees in 2008, and elected in 2009, Tanya Hobson-Williams was the first African-American Female Justice in the Incorporated Village of Hempstead. Tanya Hobson–Williams obtained her B.A. in Government and Politics from St. John’s University and her law degree from Benjamin N. Cardozo School of Law.
Tanya Hobson-Williams has an active elder law practice assisting senior citizens in obtaining Medicaid for Home Care and Nursing Home Care. She routinely lectures at senior citizen centers, assisted living facilities, law schools and counsels families on a variety of topics of concerns to families caring for the elderly.
