The home health care industry suffered a major setback on September 26, 2018, when the New York Supreme Court, New York County, ruled that the New York State Department of Labor's (NYDOL) emergency rulemaking amendment to the “13-hour rule” was “null, void and invalid.” The amendment had codified the NYDOL's longstanding interpretation that home care workers only had to be paid 13 hours of a 24-hour live-in shift, as long as they received the required sleep and meal periods.

As we have been reporting since October 2017, the NYDOL, in response to decisions in the First and Second Departments of the Appellate Division rejecting the NYDOL’s 13-hour rule interpretation of its own Wage Order, issued an “emergency amendment” to the Wage Order clarifying that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more. Since the amendment was issued pursuant to the State Administrative Procedure Act (SAPA) as an “emergency regulation,” it was only effective for 90 days, and therefore required renewal and publication of a statement explaining why the emergency regulation was necessary, until it became a permanent amendment to the Wage Order. As a result, the NYDOL, after the initial emergency amendment, issued subsequent emergency amendments on January 5, 2018, April 5, 2018 and June 3, 2018.

The court, in ruling that the emergency amendment to the 13-hour rule is null and void, found that there was no “emergency” and therefore the NYDOL was not justified in using SAPA’s procedures to issue an emergency amendment. The court went on to state:

Here, although Respondents claim that the "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," the record is devoid of any facts upon which to base a finding of "immediate necessity, emergency or undue delay." A mere need for the monitoring of the home care service industry in light of the Appellate Division rulings and a potential concern about a disruption is not sufficient to justify the use of SAPA's administrative procedures for emergency rulemaking. It does not constitute a situation where "bad things are happening," as was the case in Korean Am. Nail Salon Ass 'n of New York, Inc. v. Cuomo, 50 Misc. 3d at 735. (internal citations omitted)

With this decision the home care industry again finds itself in a quandary with court decisions rejecting the NYDOL’s interpretation of its own rules. While this court has declared the emergency regulations in effect since October 2017 null and void, finding no emergency existed for issuing the amendment, it did not rule that the NYDOL could not amend its Wage Order, but rather, could not do so as an emergency regulation. The NYDOL has been taking the necessary steps to codify its interpretation as a permanent regulation, including holding the necessary public hearing on July 11, 2018. It is hoped the NYDOL will soon issue a permanent amendment to the Wage Order while the industry also waits for a decision from the Court of Appeals on the Appellate Division cases, Andryeyeva and Moreno, that were the impetus for the NYDOL’s actions to codify the longstanding 13-hour rule.

Littler will continue to monitor legal developments affecting the home care industry and report on any significant developments.