The New York State Department of Labor (DOL) adopted an emergency temporary regulation on October 6, 2017 to address home care aides who work shifts of 24 hours or more. This action comes amidst much anxiety in the industry caused by recent case law which called into question a prior DOL opinion letter as not being a proper interpretation of existing laws and regulations. In the DOL’s own words, the reason for this emergency temporary regulation is as follows:
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. As a result of those decisions, home care agencies may cease to provide home care aides 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. Because those decisions relied upon the Commissioner’s regulation, and rejected the Department’s opinion letters as inconsistent with that regulation, 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.
There still remain several areas of concern with respect to this issue. Chief amongst them is the question of back-pay liability, a potential threat to the entire industry. It is anticipated that further rulemaking on this topic will be forthcoming.