By Steve Wishnia

A proposed New York City law to abolish 24-hour shifts for home health-care workers has near-universal support — but only in principle. Opponents argue there’s no way to pay for it.

Intro 175, the “No More 24” bill, sponsored by City Councilmember Christopher Marte (D-Manhattan), would limit the attendants’ shifts to 12 hours within a 24-hour period, and 50 hours a week, except in emergencies. That would outlaw the practice of having them work 24-hour shifts while only getting paid for 13 hours — state labor regulations assume home-care workers have the rest of the time off to eat and sleep. The bill’s 27 cosponsors range from socialists to four of the Council’s five Republicans.

“People are leaving the industry because of the unduly long hours,” Marte says. Eliminating the 24-hour shifts would be “better for the workers, better for the patients.”

“Who really wants to work 24 hours for 13 hours of pay?” home health aide Yuan Xiao, who injured her arm and back lifting her patient from the bed to his wheelchair, told a Council Civil Service and Labor Committee hearing Sept. 6. “Working 12 hours, we get the same amount of pay. Can you imagine how much pay we lost working 24 hours? And doing 24 hours damages our health. It's so unfair.”

“24-hour shifts and 60-hour workweeks destroy the health, well-being, and dignity of home-care workers, as well as their ability to provide care,” testified JoAnn Lum of the Chinatown-based National Mobilization Against Sweatshops. “How do we justify the provision of services to the elderly and disabled by sleep-deprived, stressed, injured caregivers?”

The bill, however, is opposed by several disabled people’s organizations and agencies that provide home care. They say workers deserve to get paid for all the hours they work — but if Medicaid funding is not increased to cover the cost of that, it would cause havoc. Many patients fear it would leave them stranded with partial care or force them into nursing homes, Elizabeth Valdez of the Brooklyn Center for the Independence of the Disabled told the Sept. 6 hearing.

About 18,000 people in the city are sick enough to need round-the-clock care. The aides are usually hired and connected to clients by nonprofit agencies, who are reimbursed by Medicaid, often through a managed-care program run by an insurance company. The workers are almost all women, and most are immigrants. They were generally paid minimum wage until Oct. 1, when a state law increased their base rate to $17 an hour.

“Medicaid reimbursement for 24-hour home care services is currently based on the assumption that workers receive 13 hours of pay for those shifts. We applaud the aim…  to eliminate 24-hour shifts and end this exploitative practice,” Helen Schaub, interim political director of 1199SEIU, the main union representing home health aides in the city, testified.

However, Schaub said the only way to ensure workers get paid in full is if “the additional hours are funded through the state Medicaid program,” a cost the union estimates at $645 million a year. Without that funding, she added, “managed-care plans and providers — the vast majority for-profit — will have a powerful financial incentive to abandon the highest-need consumers, moving them to nursing homes where Medicaid pays fee for service.”

To avoid that, Schaub recommended that the Council amend the bill to have it go into effect in July 2023, so next year’s state budget “could both allocate the additional Medicaid funds and add them to the managed-care rates.”

Agencies object

Gloria Kim, senior policy analyst of the Human Services Council, an organization of human-services providers in New York City, called the bill an “unfunded mandate,” because the city can’t force the state to pay the cost of hiring enough workers to cover split shifts of 12 hours each. She estimated that cost at $1-1.2 billion, and urged that workers’ pay be raised to $21 an hour.

ArchCare, the Catholic Archdiocese of New York’s social-services agency, also opposed the bill, saying it would “further aggravate our health-care worker shortage.”

“People try to make the funding issue bigger than it is,” Councilmember Marte responds, and some people “use it as a scapegoat.”

Patients everywhere else in the state get split-shift care, he adds. He says it’s different in New York City because “the workforce is mainly women of color who barely speak English” and they get exploited by agencies.

Retiring Assembly Health Committee chair Richard Gottfried (D-Manhattan) agreed that state action is necessary.

“I largely agree with the intent of Intro 175,” he told the Council. “I believe that if a worker is required to be present at the work site and prepared to perform duties at a moment’s notice, then that worker is entitled to be paid for that time.”

But he said the bill as written would force agencies to violate state rules or get fined by the city.

Two bills to address the issue were introduced in the Legislature during the 2021-22 session. But neither Gottfried’s measure to set home health aides’ base pay at 150% of the minimum wage nor a bill to require split shifts for patients needing 24-hour care made it out of committee in either house.

Overtime question

Some workers objected to the 50-hour weekly limit, telling the committee they needed the overtime pay to make a living.

“If you cap the amount of hours that an employee can work, you will be limiting how much they can earn,” testified Margaret Glover, president of District Council 37’s Local 389, which represents more than 6,000 home-care workers. But she said “the real issue lies with how low our hourly rate is, and not with the amount of hours we work.”

She suggested prohibiting employers from enforcing mandatory overtime, and said that many of her members work 24-hour shifts “to provide a consistent and familiar face to their clients in need,” instead of having “strangers coming in and out.”

The argument that ending 24-hour shifts would worsen the home-attendant shortage is completely wrong, Jihye Song of the Ain’t I A Woman Campaign, a Chinatown-based group organizing low-wage women workers, told Work-Bites in an emailed message. The 24-hour shifts actually worsen the shortage, she says, because many attendants who’ve done them for years “finally have enough and refuse to work them any more.” Agencies offer only minimal amounts of work to attendants who refuse them; and other attendants are “forced to retire early due to injuries sustained working 24-hour shifts for days on end.”

The home-care agencies and health-insurance companies, she told the Council, “make more money when they make one worker do the job of two or three.” “Without a doubt, splitting the shifts would do much to attract workers to the home-care industry,” she added.

Laws against wage theft — employers are supposed to pay attendants if they have to work taking care of the patient during the 11 hours they’re supposedly off — are weakly enforced, Song says.

“Isn't it disgraceful that our legislators claim they can't find the money to pay workers what the law says they're owed?” she asks. “That they'd rather pit patients against workers rather than threaten the profits of insurance companies?”

Marte says he is “in dialogue” with the unions, and plans to meet with disability organizations. One possible amendment would be having the bill go into effect after the state budget is passed next year, as 1199SEIU had urged.

“We’re open to amendments, but not any that defeat the purpose of the bill,” he says.