The home health care industry has been buffeted in the past year by almost constant winds of change and conflicting guidance. Home health care agencies, which provide crucial live-in aides to New York’s most vulnerable, elderly and ill residents, had relied on the New York Department of Labor’s guidance to pay their workers for years. The NYDOL’s policy since 2010 was that “live-in” aides should be paid for 13 hours of a 24 hour shift, as long as those aides were allowed 8 hours of sleep, (5 of those hours must be uninterrupted), and 3 uninterrupted hours for meals. This policy, known in the industry as the “13 hour rule” meant that aides were compensated for hours worked, but agencies were not bankrupted by needing to pay for the full 24 hour shifts.
Since the spring, three New York State Appellate Division cases have ruled that non-residential home health care attendants must be paid for the entire 24 hour shift, even if they take the requisite sleep and rest periods. The three cases, Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 02759 (1st Dept. Apr. 11, 2017); Andryeyeva v. New York Home Attendant Agency, 2017 NY Slip Op 06421 (2d Dept. Sept. 13, 2017) and Moreno v. Future Care, 2017 NY Slip Op 06439 (2d Dept. Apr. 11, 2017) rocked the home health care industry. Violations of the New York Labor Law come with a six-year statute of limitations, so agencies that have been faithfully following the 13 hour rule for the past seven years would nonetheless be hit with lawsuits for enormous amounts of unpaid wages. The result? Many agencies would be bankrupted, many aides would be without employment and many needy New Yorkers would be without care.
After an understandable outcry, the NYDOL issued an amended emergency Wage Order on October 6, 2017. The Wage Order, §142.2.1(b) was amended to include the following clarification:
Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.
The amended Wage Order confirms the industry’s understanding that aides who work 24 hour shifts do not need to be paid for their meal and sleep periods. The federal regulations referenced in the amendments essentially state that employees do not need to be paid for “bona fide” meal and sleep periods (at 30 minutes “completely freed” from duties to eat and 8 hours to sleep, at least 5 of which must be uninterrupted).
What’s next? The Court of Appeals has yet to weigh in on Tokhtaman et. al., and it may clarify or overturn those decisions. At the very least, New York’s highest court will have to decide whether the Appellate Division decisions will apply retroactively, so agencies may still be liable for back pay prior to October 6. The amended Wage Order also does not appear to apply retroactively, so more guidance is required on that front.
We will keep you apprised of news on these fast-moving and high-stakes issues affecting New Yorkers.
 Not all courts agree with this view. In Bonn-Wittingham v. Project O.H.R., Inc., 2017 WL 2178426 (E.D.N.Y. May 17, 2017), the court rejected the reasoning in Tokhtaman because the DOL guidance was not unreasonable such that it should not be given deference.