Article Courtesy of  Elizabeth E. Hogue, Esq.

The United States Department of Labor (DOL) issued final rules effective on January 1, 2015, which eliminate the Companionship and Live-In Exemptions for home care workers.  The final rule includes significant changes that will alter the operations and practices of agencies providing private duty services.

The DOL issued an announcement on October 9, 2014, however, that will delay enforcement of the final rules.  The DOL emphasizes in the announcement that there is no change in the effective date.  Rather, there will be a “time-limited non-enforcement policy” in effect for six months beginning on January 1, 2015, and continuing until June 30, 2015.  This means that the Department will not bring enforcement actions against any employer that is related to violations of the amended regulations.

Thereafter, the Department will exercise “prosecutorial discretion” from July 1, 2015, until December 31, 2015, to determine whether to bring enforcement actions.  During this period of time, particular consideration will be given to the extent that States and other entities have made good faith efforts to bring their home care programs into compliance with the Fair Labor Standards Act (FLSA) since the final rule was published in October, 2013. Throughout 2015, the Department will also continue to engage in extensive outreach and education and will also provide technical assistance, especially to States regarding publicly funded home care programs.

While this is welcome news for agencies that provide private duty services, they must nonetheless prepare for compliance on January 1, 2015. Below is a summary of the major provisions of the revised rules.  Major changes in the final rule include:

Minimum Wage and Overtime Protections. The final rule revises the definition of “companionship services” to clarify and more narrowly define the duties that fall within the term.  The final rule also prohibits third party employers, such as home care agencies, from claiming the companionship or live-in exemptions.

Companionship Services. The term “companionship services” means the provision of fellowship and protection for an elderly person or a person with an illness, injury or disability who requires assistance in caring for him/herself.

Companionship services also include the provision of “care” if the care is provided attendant to and in conjunction with the provision of fellowship and protection, and does not exceed twenty percent of the total hours worked per person and per workweek.

Fellowship and Protection. According to the final rule, “fellowship” means to engage the person in social, physical and mental activities.  “Protection” means to be present with persons in their homes or to accompany persons when outside of the home to monitor the persons’ safety and well-being.  Examples of fellowship and protection may include: conversation, reading, games, crafts, accompanying persons on walks, and going on errands, to appointments or to social events.

Care. The definition of companionship services in the final rule allows for the performance of “care” services if those services are performed attendant to and in conjunction with the provision of fellowship and protection, and if they do not exceed twenty percent of the employee’s total workweek hours per consumer.  The companionship services exemption is inapplicable when employees spend more than twenty percent of their workweeks performing care. In such workweeks, employees are entitled to minimum wage and overtime.

In the final rule, “care” is defined as assistance with activities of daily living; such as dressing, grooming, feeding, bathing, toileting and transferring and instrumental activities of daily living (i.e., tasks that enable persons to live independently at home; such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care).

Household Work.  The final rule limits household work to tasks that benefit the elderly person or a person with an illness, injury or disability.  Household work that primarily benefits other members of the household, such as making dinner for other household members or doing laundry for everyone in the household, results in loss of the companionship exemption and thus employees would be entitled to minimum wage and overtime pay for the workweek.

Medically Related Services.  The definition of companionship services does not include the provision of medically related services that are typically performed by trained personnel.  Under the final rule, the determination of whether a task is medically related is based on whether the services are typically required and are performed by trained personnel, such as registered nurses, licensed practical nurses, or certified nursing assistants. The determination is not based on actual training or occupational titles of the workers performing the services. Performance of medically related tasks during the workweek results in loss of the exemption, and employees are entitled to minimum wage and overtime pay for that workweek.

Live-In Domestic Service Employees.  Live-in domestic service workers who reside in the employer’s home permanently or for an extended period of time and are employed by an individual, family, or household are exempt from overtime pay, although they must be paid at least the federal minimum wage for all hours worked.  Live-in domestic service workers who are solely or jointly employed by a third party must be paid at least the federal minimum wage and overtime pay for all hours worked by that third party employer.  Employers of live-in domestic service workers may enter into agreements to exclude certain time from compensable hours worked, such as sleep time, meal time, and other periods of complete freedom from work duties.  If the sleep time, meal period or other periods of free time are interrupted by a call to duty, the interruptions must be counted as hours worked.  Under the final rule, employers must maintain accurate records of hours worked by live-in domestic service workers.  Employers may require the live-in domestic service employees to record their hours worked and to submit records to employers.

Third Party Employers.  According to the final rule, third party employers of direct care workers, such as home care staffing agencies, are not permitted to claim either the exemption for companionship services or the exemption for live-in domestic service employees.  Third party employers may not claim either exemption even when employees are jointly employed by third party employers and individuals, families, and households using the services.  Individuals, families, and households may claim applicable exemptions.  Consequently, if there is a third party employer, the individual, family, or household will not be liable for unpaid wages under the FLSA, provided the requirements of an application exemption are met.

Paid Family or Household Members in Certain Medicaid-Funded and Certain Other Publicly Funded Programs Offering Home Care Services.  According to DOL, the FLSA does not necessarily require that once families or household members are paid to provide some home care services that all care provided by that family or household member is part of the employment relationship. If applicable, DOL will not consider a family or household with a pre-existing close personal relationship with the consumer to be employed beyond a written agreement developed with the involvement and approval of the program and the consumer or consumer’s representative, usually called a plan of care, that reasonably defines and limits the hours for which paid home care services will be provided.

Private duty agencies certainly have their work cut out for them over the next few months!

©2014 Elizabeth E. Hogue, Esq.  All rights reserved.

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