DOL Extends FLSA Protection to Home Care Aides

By | October 2nd, 2013 | General

An estimated 2 million Americans will start seeing bigger paychecks in 2015. Under the Fair Labor Standard Act, employers are required to pay employees minimum wage for hours worked up to 40 hours/week and time and half (overtime) for every hour worked over 40 hours/week. Two exemptions to this rule applicable to domestic services employment are the “companionship” exemption and the “live-in” exemption. The new rules narrowly interpret these exemptions thereby extending the FLSA protections to a host of in-home health care workers previously thought to be exempt, including certified nurse assistants (CNA), home health aides and personal care givers.

This Final Rule includes three (3) key changes that employers should be aware of. First, it narrowly defines the tasks that fall under the companionship exemption. Under the new rule, “companionship services” means providing fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance in caring for herself/himself. Fellowship and protection may include simply talking, playing games, accompanying the person to appointments or on walks, etc. The companion/employee also may directly provide “care” to the ill/elderly person (in addition to fellowship and protection) without losing the exemption, provided the “care” does not exceed 20% of the total hours worked by the employee in a given workweek. “Care” includes assisting with activities for daily living (dressing, grooming, feeding, bathing), and assisting with “instrumental activities of daily living” (meal preparation, driving, light housework, managing finances and physical taking of medications). If an employee spends greater than 20% of his or her time performing “care” in a given workweek, he or she is entitled to minimum wage and overtime. An employee performing medically-related services must be paid the minimum wage and is entitled to overtime.

Second, the narrowly defined “companionship exemption” and “live-in domestic” worker exemptions can only be claimed by the individual, family, or households who employ the workers directly and not by third-party employers or agencies. Third-party employers or agencies will be required to pay companionship service workers and live-in domestic workers the minimum wage and overtime pay for hours worked over 40 per week even if the worker is jointly employed by the individual or household.

Third, accurate time records must be maintained by employers for live-in domestic workers. Live-in domestic workers include workers who reside on his or her employer’s premises on a “permanent basis” or for “extended periods of time” (including employees who work and sleep for 120 hours or more on the employer’s premises). This also includes workers who have no home of their own but permanently reside on the employer’s premises. It does not necessarily include workers who work 24-hour shifts. Live-in domestic workers must be paid the minimum wage for all hours worked but are exempt from overtime for hours worked in excess of 40. The worker and his or her employer also may agree to exclude bona fide meal periods and sleeping periods (up to 8 hours), if the employee generally can enjoy an uninterrupted sleeping period and sleeping facilities are provided.

The law will not go into effect until January 1, 2015, a move that is unusual in and of itself. Typically, new regulations become effective 60 days after being issued. The delay is intended to allow home health agencies, families that use attendants, and state Medicaid workers time to prepare. The new regulations will undoubtedly have a significant effect on the home care industry with potential impacts on the availability and quality of such care available. Employers in this industry should begin working now to estimate their increased labor costs, implement systems for accurate time keeping and create or update and train on pay policies and procedures applicable to the unique work environment of home health workers.

Employers Legal Resource Center is available to assist home health agencies with this dramatic change in procedures. Contact us today at (405) 702-9797.

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