FLSA Protections Extended to Grandma’s Home Care Aide (Maybe)

In a new release dated 17-Sept-2013 the U.S. Department of Labor (DOL) announced they are extending minimum wage and overtime rules to cover many home care workers, effective 1-Jan-2015.

Since 1974, these home care workers have been placed in the same category as neighborhood baby-sitters, and have been considered exempt from minimum wage and overtime rules.

However, with the aging of the population and a move to keep seniors and the disabled at home rather than in nursing homes, more and more people are needing more skilled care. And unlike the next-door-neighbor teen who baby-sits, the vast majority of these workers are now employed by home care agencies in what has become an $84 billion industry.

According to the release:

This change will result in nearly two million direct care workers — such as home health aides, personal care aides and certified nursing assistants — receiving the same basic protections already provided to most U.S. workers. It will also help guarantee that those who rely on the assistance of direct care workers have access to consistent and high-quality care from a stable and increasingly professional workforce.

What Happens Next?

Well, first off, don’t panic. Remember, the rule doesn’t take effect until 2015, so those who are impacted have over 14 months to prepare.

Second, a couple of points of clarification may be helpful to determine whether you need to do anything at all:

  • Any workers who provide domestic services (such as cooking meals, cleaning house or doing laundry) to other family members besides the elderly/disabled person are considered domestic workers and are already covered by minimum wage and overtime rules. (So if you have someone working for you in this capacity and you aren’t paying them at least the minimum wage and overtime when they work over 40 hours a week, you need to fix that, pronto!)
  • Workers who provide medical-type care that may be invasive, sterile, or otherwise requires exercising medical judgment and typically needs specialized training, such as tube feeding, changing wound dressings or providing catheter care are not considered “companion workers” and are already covered by minimum wage and overtime rules. (Ditto here — if you employ someone to provide these services for you or a family member and you aren’t paying them minimum wage and overtime already, you’d better start, right now.)
  • The new rule will apply to all home care workers who are employed by an agency or other third party, regardless of the services they provide. So if you own or manage an company that provides home companion workers or home health care aides to clients and you aren’t already paying minimum wage and overtime, be prepared to start come January 2015.
  • The new rule may or may not apply to workers who are directly employed by the family or individual who requires care, depending on their specific duties. If the caregiver is employed by the family or individual:
    • “Casual babysitters” are still exempt from minimum wage and overtime rules.
    • The rule will not apply to workers who spend more than 80% of their time simply providing “fellowship and protection” to their elderly or disabled client. This is defined as engaging the person in “social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, on errands, to appointments, or to social events,“ and being present with the person at home and/or outside the home in order to “monitor the person’s safety and well-being.”
    • The rule will apply to caregivers who spend 20% or more of their time on “activities of daily living (ADLs) (such as dressing, grooming, feeding, bathing, toileting, and transferring) or instrumental activities of daily living (IADLs) (such as meal preparation, driving, light housework, managing finances, assisting with the physical taking of medications, and arranging medical care).”

So, for example, it’s probably not going to apply if the caregiver is primarily there just to make sure Grandma doesn’t wander away and engages in social interaction instead of just staring at the TV all day, but also fixes Grannie a sandwich and ensures she takes her required pills at lunchtime.

Based on a 40 hour work week, as long as the caregiver spends less than eight hours a week on ADLs and IADLs, they’ll be under the 20% threshhold. Assuming a five-day week, that’s an average of one hour, 36 minutes per day.

On the other hand, if every day the the caregiver is getting Grandma out of bed, helping her bathe, cooking her breakfast, lunch (and maybe dinner, too), washing up afterwards, taking care of her laundry, maybe doing a little light vacuuming, driving her to shopping and doctors’ appointments and helping her balance her checkbook, then it’s a fair bet the new rule will apply.

Need More Info or Help?

The DOL has provided a helpful resource page for workers, families and agencies. This resource page includes questionnaires for workers and families to help them understand who is covered by the new rule, as well as information about recordkeeping requirements and what hours should be counted.

In addition, the DOL has prepared an updated Fact Sheet covering Companionship Services Under the Fair Labor Standards Act (FLSA) that explains the basic provisions of the new rule.

What do you think about theses changes? Do you think it will make it harder for families to afford home health care for their loved ones, or will it help attract more qualified people to the field? Or perhaps a bit of both?

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