The United States Court of Appeals for the Second Circuit recently denied a National Labor Relations Board request to enforce an agency Decision and Order finding that a company providing home health care services violated the National Labor Relations Act by refusing to immediately reinstate 48 home health care aides who failed to report to their patients' homes during a strike period, after indicating their intention to work.

After the strike, the 48 aides who did not provide advance notice were told not to return to their assigned patients until further notice, while a group of more than 70 aides who did provide advance notice of their intention to miss work were immediately reinstated. The 48 aides were ultimately all reassigned over the next few months.

In denying the NLRB's request, the Second Circuit concluded that the home health aides' failure to report to work without providing notice created a reasonably foreseeable risk of imminent danger to the company's patients, which included individuals suffering from recent strokes, broken limbs, Parkinson's disease, early onset Alzheimer's, epilepsy, breast cancer, developmental disabilities, and more. The court reasoned that neither home health aides nor their employer had any authority to determine whether a patient can be left alone at any time, as that analysis rests with treating physicians. All company patients are subject to nursing plans that prescribe some measure of supervision and assistance, and the absence of a home health aide at a time when patients' families and physicians expect one to be there increases the risk of injuries and complications of a patient's condition. Read more.