New York: Does Homeowners Insurance Cover Your Parent's Home Aide?

In New York, a homeowners policy covers workers' comp for a part-time home aide (under 40 hours a week, not live-in) only if the policy offers that coverage and the homeowner elects it. If the aide you hire for your parent works 40 or more hours a week or lives in, the New York State Department of Labor (NYSDOL) says the employer must provide workers' compensation insurance.1

In This Guide

• The Answer at a Glance
• What New York's Homeowners Insurance Law Says
• When New York Requires Workers' Comp for a Home Aide
• How to Get Coverage for an Aide Your Homeowners Insurance Doesn't Cover
• When This Guide Doesn't Apply
• What Else You Owe an Aide You Hire in New York
• What to Do This Week
• Frequently Asked Questions
• Learn More

The Answer at a Glance

The table sorts a home aide your family hires directly in New York by weekly hours and whether the aide lives in.

The sources behind each row are New York Insurance Law section 3420(j), New York Workers' Compensation Law sections 3 and 50, two 2003 opinions of the New York State Insurance Department, and the New York State Department of Labor.1,2

What New York's Homeowners Insurance Law Says

New York Insurance Law section 3420(j) ties a New York homeowners policy to workers' comp for a household employee working under 40 hours a week, but it doesn't make that coverage automatic.1

New York Insurance Law section 3420(j) covers a policy providing comprehensive personal liability insurance on a one-, two-, three- or four-family owner-occupied home in New York. The New York State Insurance Department's 2003 opinions, below, apply New York Insurance Law section 3420(j) to homeowners policies. New York Insurance Law section 3420(j)(1) applies to such a policy issued or delivered in New York on or after March 1, 1984. Under New York Insurance Law section 3420(j)(1), that policy must cover the policyholder's liability under New York's workers' compensation law to an employee working less than 40 hours a week in and about the policyholder's New York residence.1

Then comes the condition that changes the answer. New York Insurance Law section 3420(j)(1) also says no one who buys such a policy is deemed to have elected workers' compensation coverage for an employee the workers' compensation law doesn't require to be covered.1 New York's Workers' Compensation Law doesn't require coverage for an aide who works under 40 hours a week for you and doesn't live in, which is where the homeowners-policy election comes in.2,1

New York Insurance Law section 3420(j)(2) leaves two groups out of "policyholder": business entities, and anyone who already has a workers' compensation policy covering employees who work in and about their home.1

What the Insurance Department said in 2003

The New York State Department of Financial Services posts two 2003 opinions on this question, each issued as the position of the New York State Insurance Department.

• January 6, 2003. The Office of General Counsel concluded that a domestic worker employed 30 hours a week is exempt from mandatory workers' compensation coverage in New York, so a homeowners policy covers that worker only if the policy provides for the homeowner's election of the coverage and the homeowner so elects.1
• May 23, 2003. The Office of General Counsel concluded that New York's Insurance Law doesn't require a homeowners policy to include workers' compensation coverage for a domestic worker who works fewer than 40 hours a week for the same policyholder, and doesn't require the insurer to offer that coverage through an endorsement or rider. The May 23, 2003 New York opinion adds that a homeowners insurer may still provide that coverage under the policy, and recommends checking the policy and confirming its workers' compensation coverage with the insurer.2

So "my homeowners policy covers the aide" is something to confirm, not assume. In New York, the law and the opinions put the answer in the policy's terms and in what the policyholder elected.2

When New York Requires Workers' Comp for a Home Aide

The New York State Department of Labor tells domestic workers, including people who care for an elderly person, that if they work at least 40 hours a week for a single employer or live in the residence, the employer must provide workers' compensation insurance.1

New York Workers' Compensation Law section 3 lists, among employments requiring coverage, domestic workers other than farm workers employed by the same employer for a minimum of 40 hours a week. New York Workers' Compensation Law section 3 itself states only that 40-hour test. For other domestic workers, section 3 of New York's Workers' Compensation Law leaves coverage to the employer's election, made by securing compensation under section 50 of the same law.2 In New York, the requirement to cover a domestic worker who lives in the residence comes separately, from NYSDOL (above).1

Two points families miss:

• Live-in counts even if you think of the job as part-time. NYSDOL's rule covers a domestic worker who lives in the residence, separately from the 40-hour test.1
• The hours are counted per employer. NYSDOL counts hours worked for a single employer, and section 3 counts hours with the same employer.1,2

For a home aide at 40 hours or more, or living in, the New York homeowners-policy law and the 2003 opinions don't settle whether a homeowners policy covers the worker. Treat workers' comp as a separate thing to secure and document.

How to Get Coverage for an Aide Your Homeowners Insurance Doesn't Cover

New York Workers' Compensation Law section 50 lets an employer secure compensation by insuring with the state fund, the New York State Insurance Fund, or with any stock corporation, mutual corporation or reciprocal insurer authorized to write workers' compensation insurance in New York, among other ways.2

The New York State Insurance Department's May 23, 2003 opinion took up a homeowner with a domestic worker working under 40 hours a week. Under that 2003 New York opinion, if the homeowners policy doesn't provide workers' compensation coverage for the worker, the policyholder would have to buy an endorsement, a rider, or a separate workers' compensation policy to give the worker that coverage, from the New York State Insurance Fund or any insurer authorized to write workers' compensation in New York.2

In practice, for an under-40-hour aide:

1. Call or write the homeowners insurer. Ask: "Does this policy provide for electing workers' compensation coverage for a domestic employee working under 40 hours a week, and has that election been made?"
2. If the answer is yes, ask for the endorsement or a letter confirming it, naming the aide's weekly hours.
3. If the answer is no, ask the same insurer whether it sells a workers' comp endorsement or rider. If it doesn't, get a quote from the New York State Insurance Fund or another authorized workers' comp insurer.

For a 40-hour or live-in aide, make sure workers' comp is in place, from whatever source, and keep written proof of coverage with your household employment records.

When This Guide Doesn't Apply

This guide is about an aide your family hires, directs and pays directly. Two common setups work differently.

An aide sent by an agency. For federal household-employment tax, IRS Publication 926 says a worker is your household employee if you control not only what work is done but how it's done, even if you found them through an agency's list. If an agency provides the worker and controls what work is done and how, the worker isn't your employee.5 That's the IRS test for taxes, not New York's workers' comp rule, so ask the agency in writing whether it carries workers' compensation for the aide it sends.

A family member or aide paid through Medicaid. If your parent's aide is paid through New York's Consumer Directed Personal Assistance Program (CDPAP) or another Medicaid program, this guide doesn't answer how workers' comp works for that arrangement. Start with our guide to CDPAP in New York.

For how other states treat a caregiver's on-the-job injury, and who carries the coverage when a program pays the caregiver, see our national guide to workers' comp and liability when paying a caregiver.

What Else You Owe an Aide You Hire in New York

Workers' comp isn't your only duty as a household employer. Under New York Labor Law section 170, you can't require a domestic worker to work more than 40 hours a week, or 44 hours for one who lives in your home, without overtime pay of at least one and a half times the worker's normal rate. New York's definition of a domestic worker for these rules excludes someone working on a casual basis and a relative of the employer.3

New York Labor Law section 161 also gives a domestic worker at least 24 consecutive hours of rest each calendar week, paid at the overtime rate if the worker agrees to work that day, and three paid days of rest a year after one year with the same employer.4

Those Labor Law exclusions are for overtime and rest days. They don't answer the workers' comp question. Our guide to live-in and 24-hour home care in New York covers the live-in pay rules in full.

What to Do This Week

1. Write down the aide's real weekly schedule, and whether they sleep at your parent's home.
2. Find your parent's homeowners policy declarations page and note the insurer and policy number.
3. Ask the insurer in writing the question above, and keep the reply.
4. If the aide works 40 or more hours a week or lives in, secure workers' comp as soon as you can, before the next shift if possible.
5. Put the hours, pay rate, overtime and weekly rest day in a short written agreement with the aide.

Learn More

Find personalized help hiring and insuring a home aide for your parent in New York at brevy.com.

The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.