Elder Law, Friedman and Ranzenhofer, PC Law Blog

Can NY Home Health Aide Employers Hire Aides With Felony Convictions?

Can NY Home Health Aide Employers Hire Aides With Felony Convictions?

Yes. A felony conviction is not an automatic, categorical bar. New York requires a mandatory criminal history record check (CHRC), and certain serious felonies trigger a proposed disapproval — but even those carry a discretionary safety override, and all other convictions require an individualized evaluation under Correction Law Article 23-A. A conviction-based denial that violates Article 23-A is itself unlawful employment discrimination.

A home care provider must request that the Department of Health check the criminal history of each prospective employee, routed through the Division of Criminal Justice Services and the FBI national check. (N.Y. Pub. Health Law § 2899-a) The provider must also obtain a sworn statement from the applicant disclosing any prior patient/resident-abuse finding or criminal conviction, and must “evaluate such statements in all hiring decisions.” (N.Y. Pub. Health Law § 2899-a) These requirements apply to prospective employees of certified home health agencies (CHHAs), licensed home care services agencies (LHCSAs), and long term home health care programs who provide direct care or supervision to clients. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.1)

The implementing regulation, 10 NYCRR Part 402, sorts outcomes into three tracks:

  • No criminal history — the Department advises the provider it will not issue a disapproval, and the provider “may act on the application in its own discretion.” (Y. Comp. Codes R. & Regs. tit. 10, § 402.7)
  • Enumerated serious offenses (proposed-disapproval track) — where the record reveals a felony sex offense at any time, a violent felony within the past 10 years, endangering the welfare of an incompetent or physically disabled person under Penal Law 260.25, any class A felony at any time, any class B or C felony within the past 10 years, or specified class D/E felonies under Penal Law articles 120, 130, 155, 160, 178, or 220, “the Department shall propose disapproval … unless the Department determines, in its discretion, that the prospective employee’s employment will not in any way jeopardize the health, safety or welfare of” clients. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Even for these offenses, disapproval is not automatic — the discretionary safety override remains available.
  • All other convictions (discretionary track) — for any conviction other than the enumerated serious offenses, “the Department may, consistent with article 23-A of the Correction Law, propose disapproval.” (Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Where the Department does not disapprove, “the provider may act on any application for employment in its own discretion, consistent with article 23-A of the Correction Law.” (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7)

A pending felony charge (as opposed to a conviction) requires the determination to be held in abeyance, and the provider may not allow the applicant to provide direct care until the charge is resolved; a pending misdemeanor charge may be held in abeyance after a severity review. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Before any final disapproval, the applicant must be given 30 days to explain in writing why eligibility should not be denied. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) When the Department proposes denial based on criminal history, it must furnish the applicant with a copy of the criminal history information and a copy of Correction Law Article 23-A, and advise of the right to seek correction of inaccurate records. (N.Y. Pub. Health Law § 2899-a)

Separately, a CHHA, LHCSA, or LTHHCP may temporarily approve a prospective employee while the CHRC results are pending, conditioned on direct observation and evaluation of the temporary employee and the care recipient by an experienced supervisor. (N.Y. Pub. Health Law § 2899-a)

Correction Law § 752 prohibits denying employment “by reason of the individual’s having been previously convicted of one or more criminal offenses” unless either (1) “there is a direct relationship between one or more of the previous criminal offenses and the specific … employment sought,” or (2) employment “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” (N.Y. Correct. Law § 752)

In applying that standard, the employer must weigh the eight factors in Correction Law § 753: the State’s public policy of encouraging employment of people with convictions; the specific duties of the job; the bearing of the offense on fitness to perform those duties; the time elapsed since the offense; the person’s age at the time of the offense; the seriousness of the offense; evidence of rehabilitation and good conduct; and the employer’s legitimate interest in protecting property and the safety and welfare of specific individuals or the public. (N.Y. Correct. Law § 753) A certificate of relief from disabilities or a certificate of good conduct creates a rebuttable presumption of rehabilitation. (N.Y. Correct. Law § 753)

Because home health aides work unsupervised in clients’ homes with vulnerable elderly people — often with access to their money and property — the “direct relationship” and “unreasonable risk” inquiries will weigh heavily for offenses involving violence, theft, or exploitation. But the statute requires an individualized judgment, not a blanket exclusion.

Executive Law § 296(15) makes it an unlawful discriminatory practice to deny employment “by reason of” a criminal conviction “when such denial is in violation of the provisions of article twenty-three-A of the correction law.” (N.Y. Exec. Law § 296) Notably, the same provision creates a rebuttable presumption excluding evidence of a prior conviction in a negligent-hiring/retention suit where the employer evaluated the § 752 factors and made a reasonable, good-faith determination that they favored hiring (N.Y. Exec. Law § 296) — which directly incentivizes performing the Article 23-A analysis (and bears on Question 2 below). Executive Law § 296(16) further bars inquiring about or acting adversely on arrests terminated in the applicant’s favor, adjournments in contemplation of dismissal, youthful-offender adjudications, and sealed convictions, unless specifically permitted by statute. (N.Y. Exec. Law § 296)

A felony conviction does not automatically disqualify a prospective home health aide. Serious, enumerated felonies trigger a presumptive (but overridable) disapproval through the DOH check; all other convictions require an individualized Article 23-A evaluation. An employer that reflexively rejects every applicant with any felony risks violating Correction Law Article 23-A and Executive Law § 296.

Contact Elder Law Attorneys Friedman & Ranzenhofer, PC  at (716) 543-7364 if you or a family member are the victims of abuse by a home health care aide.

Can NY Home Health Aide Employers Hire Aides With Felony Convictions?

Yes. A felony conviction is not an automatic, categorical bar. New York requires a mandatory criminal history record check (CHRC), and certain serious felonies trigger a proposed disapproval — but even those carry a discretionary safety override, and all other convictions require an individualized evaluation under Correction Law Article 23-A. A conviction-based denial that violates Article 23-A is itself unlawful employment discrimination.

A home care provider must request that the Department of Health check the criminal history of each prospective employee, routed through the Division of Criminal Justice Services and the FBI national check. (N.Y. Pub. Health Law § 2899-a) The provider must also obtain a sworn statement from the applicant disclosing any prior patient/resident-abuse finding or criminal conviction, and must “evaluate such statements in all hiring decisions.” (N.Y. Pub. Health Law § 2899-a) These requirements apply to prospective employees of certified home health agencies (CHHAs), licensed home care services agencies (LHCSAs), and long term home health care programs who provide direct care or supervision to clients. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.1)

The implementing regulation, 10 NYCRR Part 402, sorts outcomes into three tracks:

  • No criminal history — the Department advises the provider it will not issue a disapproval, and the provider “may act on the application in its own discretion.” (Y. Comp. Codes R. & Regs. tit. 10, § 402.7)
  • Enumerated serious offenses (proposed-disapproval track) — where the record reveals a felony sex offense at any time, a violent felony within the past 10 years, endangering the welfare of an incompetent or physically disabled person under Penal Law 260.25, any class A felony at any time, any class B or C felony within the past 10 years, or specified class D/E felonies under Penal Law articles 120, 130, 155, 160, 178, or 220, “the Department shall propose disapproval … unless the Department determines, in its discretion, that the prospective employee’s employment will not in any way jeopardize the health, safety or welfare of” clients. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Even for these offenses, disapproval is not automatic — the discretionary safety override remains available.
  • All other convictions (discretionary track) — for any conviction other than the enumerated serious offenses, “the Department may, consistent with article 23-A of the Correction Law, propose disapproval.” (Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Where the Department does not disapprove, “the provider may act on any application for employment in its own discretion, consistent with article 23-A of the Correction Law.” (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7)

A pending felony charge (as opposed to a conviction) requires the determination to be held in abeyance, and the provider may not allow the applicant to provide direct care until the charge is resolved; a pending misdemeanor charge may be held in abeyance after a severity review. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) Before any final disapproval, the applicant must be given 30 days to explain in writing why eligibility should not be denied. (N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7) When the Department proposes denial based on criminal history, it must furnish the applicant with a copy of the criminal history information and a copy of Correction Law Article 23-A, and advise of the right to seek correction of inaccurate records. (N.Y. Pub. Health Law § 2899-a)

Separately, a CHHA, LHCSA, or LTHHCP may temporarily approve a prospective employee while the CHRC results are pending, conditioned on direct observation and evaluation of the temporary employee and the care recipient by an experienced supervisor. (N.Y. Pub. Health Law § 2899-a)

Correction Law § 752 prohibits denying employment “by reason of the individual’s having been previously convicted of one or more criminal offenses” unless either (1) “there is a direct relationship between one or more of the previous criminal offenses and the specific … employment sought,” or (2) employment “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” (N.Y. Correct. Law § 752)

In applying that standard, the employer must weigh the eight factors in Correction Law § 753: the State’s public policy of encouraging employment of people with convictions; the specific duties of the job; the bearing of the offense on fitness to perform those duties; the time elapsed since the offense; the person’s age at the time of the offense; the seriousness of the offense; evidence of rehabilitation and good conduct; and the employer’s legitimate interest in protecting property and the safety and welfare of specific individuals or the public. (N.Y. Correct. Law § 753) A certificate of relief from disabilities or a certificate of good conduct creates a rebuttable presumption of rehabilitation. (N.Y. Correct. Law § 753)

Because home health aides work unsupervised in clients’ homes with vulnerable elderly people — often with access to their money and property — the “direct relationship” and “unreasonable risk” inquiries will weigh heavily for offenses involving violence, theft, or exploitation. But the statute requires an individualized judgment, not a blanket exclusion.

Executive Law § 296(15) makes it an unlawful discriminatory practice to deny employment “by reason of” a criminal conviction “when such denial is in violation of the provisions of article twenty-three-A of the correction law.” (N.Y. Exec. Law § 296) Notably, the same provision creates a rebuttable presumption excluding evidence of a prior conviction in a negligent-hiring/retention suit where the employer evaluated the § 752 factors and made a reasonable, good-faith determination that they favored hiring (N.Y. Exec. Law § 296) — which directly incentivizes performing the Article 23-A analysis (and bears on Question 2 below). Executive Law § 296(16) further bars inquiring about or acting adversely on arrests terminated in the applicant’s favor, adjournments in contemplation of dismissal, youthful-offender adjudications, and sealed convictions, unless specifically permitted by statute. (N.Y. Exec. Law § 296)

A felony conviction does not automatically disqualify a prospective home health aide. Serious, enumerated felonies trigger a presumptive (but overridable) disapproval through the DOH check; all other convictions require an individualized Article 23-A evaluation. An employer that reflexively rejects every applicant with any felony risks violating Correction Law Article 23-A and Executive Law § 296.

Contact Elder Law Attorneys Friedman & Ranzenhofer, PC  at (716) 543-7364 if you or a family member are the victims of abuse by a home health care aide.

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