For 11 years, Epifania Hichez worked 24-hour shifts caring for elderly New Yorkers in their homes, while getting paid for only 13 hours of each shift — a state-sanctioned policy that home health workers have fought in the past, and which the New York Court of Appeals upheld in 2019. Now retired, the 73-year-old has become a leading voice in the fight to end 24-hour shifts altogether.

Working 24-hour shifts “destroys our health and kills us slowly,” Hichez said in Spanish during a home care worker rally in Flushing, Queens on Wednesday. “Our family suffers too.”

Often workers are assigned to multiple 24-hour shifts in a row, keeping them away from their families for days at a time. Hichez said she supports a bill in Albany that would split all 24-hour home care shifts in two, with workers getting paid for every hour on the job.

“We’re here to get justice,” she said, “so the women that are working now don’t get hurt the way I got hurt.”

For home health aides, the fight to end 24-hour shifts — or at least get paid for all the hours they work — has been a long and arduous one that has faced many obstacles. Under former Gov. Andrew Cuomo, the state labor and health departments actively worked to maintain the status quo of paying these workers — most of whom are immigrant women — for about half the hours they’re in their clients’ homes. The 13-hour policy is based on the assumption that workers are able to get three hours for meals each day and eight hours of sleep each night, at least five of which are uninterrupted — something home care employees say is often impossible, given their tasks.

Advocates are optimistic that Gov. Kathy Hochul will be more amenable to change.

“We call on Gov. Hochul to end this legacy of sexism and racism that was perpetuated by the Cuomo administration,” said JoAnn Lum of the National Mobilization Against Sweat Shops, a labor group that has been organizing around this issue for years. “It’s really ruined the lives of so many women.”

Advocates have also been calling out some staffing agencies for violating existing labor laws pertaining to 24-hour shifts, which they say the state has not done enough to enforce.

Asked Friday whether Hochul supports ending 24-hour shifts, Avi Small, a spokesperson for the governor, did not respond directly, but said, “Ensuring quality work conditions and quality care for our most vulnerable New Yorkers is critical and we are committed to retaining and expanding this vital workforce.” Small said more details would be included in the governor’s upcoming executive budget.

To understand why it’s been so difficult to change the policies around 24-hour care, it’s necessary to understand how it’s paid for. Much of the 24-hour home care provided in New York is covered by Medicaid, the public health insurance program for people who are disabled or have low incomes. The Medicaid payments are primarily split between the state and federal governments. Paying for every hour of 24-hour care would nearly double the cost of that service for taxpayers.

In the past, the state health department has refused to provide data on how many patients receive 24-hour care, which would allow for a reasonable estimate of what it would cost to pay for it in full. But Assemblyman Harvey Epstein, who first introduced a version of the bill to end 24-hour shifts in his chamber in 2019, said he has calculated that it would cost Medicaid an estimated $1 billion per year, about $500 million of which would be picked up by the state.

“Now, basically, we're stealing $1 billion [a year] from low-wage workers who are mostly immigrant women of color,” Epstein said. “So, we're saving money off their backs. But it is still an expensive price tag.”

Hochul said in her State of the State address last week that she intends to put $10 billion over multiple years toward bolstering the health care workforce. But it’s still unclear how exactly that money will be allocated. A separate bill to raise the minimum wage for all home care workers, as a means of addressing the workforce shortage in the sector, is also competing for state funds and has gained more widespread support. Only about 5% to 7% of home care workers statewide are on 24-hour shifts, according to an estimate from the union 1199SEIU, which represents many of them. The union said it supports legislation to split 24-hour shifts in two.

Epstein said he is optimistic. “We've gotten much further in the last six months than we were able to get in the last three-and-a-half years [under Cuomo],” he said Friday. He said if Hochul doesn’t include money for his legislation in her executive budget, he will seek to get it added during the budget process.

The Home Care Association of New York State, which represents home care employers, supports the goals of Epstein’s bill, said Al Cardillo, the group’s president and CEO. But he said he doesn’t want to outlaw 24-hour shifts altogether, since having more aides coming in and out of homes might be hard on some patients. Instead, he said, the bill should help ensure workers are paid adequately when they do take on these shifts.

Ongoing Legal Challenges

Home health aides in New York have filed upwards of 100 class-action lawsuits against their employers in recent years, challenging the policy of getting paid for 13 hours of each 24-hour shift. Some home care staffing agencies have reached settlements with their employees in these cases, but overwhelmingly they have fought them. Home care employers have claimed that paying workers all the back-wages they’re owed would bankrupt them.

After judges in New York ruled in favor of workers in two of these cases in 2017, Cuomo’s labor department responded by issuing regulations reinforcing the 13-hour policy. It said at the time that it was necessary to “prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home.”

Those cases ultimately went up the ladder to the state’s highest court, which ruled in 2019 that the 13-hour policy was, in fact, legal. The decision still clarified, however, that home care employers must track the hours their employees work and ensure they are getting the amount of sleep and meal time they are due under the law. The ruling said if the workers don’t get that necessary rest, they must be paid for the full 24 hours.

But Lum and other advocates for home care workers say not much has changed since the 2019 ruling. The rally in Flushing was held to thank Assemblymember Ron Kim for a lengthy report he released this month calling out one nonprofit employer, the Chinese-American Planning Council Home Attendant Program, for failing to track and adequately compensate the hours employees work, among other allegations. Kim suggested the agency should be boycotted and denied funding if it doesn’t come into compliance with the law.

Wayne Ho, the president and CEO of the Chinese-American Planning Council, countered that “when home care workers have interruptions, [the Chinese-American Planning Council] has implemented an easy-to-use system for compensating our home care workers for those interruptions, which is not reimbursed [by Medicaid].”

Ho added that his organization also supports Epstein’s bill and hopes it will be fully funded in the budget.

The union 1199SEIU has placed clauses in many of its contracts with home care agencies requiring legal disputes to be settled out of court through private arbitration. The union says it is currently involved in arbitration over pay for 24-hour shifts with more than 40 separate home care agencies and that an arbitrator is on the verge of reaching an industry-wide ruling on workers’ claims.

Regardless of the outcome of these cases, those fighting to end 24-hour shifts say it’s necessary to protect workers’ health and prevent a vulnerable workforce from getting short-changed in the future.

“If we reinforce this notion that ending 24-hour shifts is contingent upon the funding,” said Lum, “it’s actually really damaging because it just reinforces this notion that we can allow this to continue.”

Editor’s note: This story has been updated to clarify the reason for the rally in Flushing, which was held to celebrate Assemblyman Ron Kim’s report calling out the Chinese-American Planning Council. It has also clarified that an arbitrator is close to reaching a ruling on workers’ claims, rather than a settlement being made between employers and workers represented by 1199SEIU.