Citing the need “to preserve the status quo, prevent the collapse of the home healthcare industry, and avoid institutionalizing patients who could be cared for at home,” the New York Department of Labor (NYDOL) has issued emergency regulations to ensure consistency with longstanding opinion letters issued by the Department and to clarify that time spent sleeping and on meal breaks is not compensable time for home healthcare aides who work shifts of 24 hours or longer at a client’s home. The NYDOL expressly noted that the emergency regulations were necessitated by recent decisions of the First (Manhattan) and Second (Brooklyn) Departments of the Appellate Division, which had relied on the language of the existing regulations to hold that such time was in fact compensable. Those decisions – Andryeyeva v. New York Health Care, Inc., 2017 N.Y. App. Div. LEXIS 6408 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017); Moreno v. Future Care Health Services, Inc., 2017 N.Y. App. Div. LEXIS 6462 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017); and Tokhtaman v. Human Care, LLC, 149 A.D.3d 476 (N.Y. App. Div. 1st Dep’t Apr. 11, 2017) – are the subject of continued appeals and were addressed in a recent Jackson Lewis article, which can be found here .
The emergency regulations reiterate that the Department interpets New York law consistently with the FLSA on this issue and provides renewed hope for the home healthcare industry, which continues to operate under the specter of financial ruin based on the appellate court decisions – decisions which would require payment of minimum wages well in excess of the amounts received by home care agencies for their services, particularly those agencies implementing government-funded programs. Because the revisions were made to the regulations on an emergency basis, they are in effect only until January 3, 2018. However, the NYDOL intends to issue permanent regulations and has stated that it will be issuing a notice of proposed rulemaking in this respect.