DOL Proposes Significant Changes to the Home Health Care Industry
Posted by Kara DelTufo on Thu, Feb 02, 2012 @ 02:14 PM
On December 27, 2011 the Department of Labor’s Wage and Hour Division published a Notice of Proposed Rulemaking to revise the Fair Labor Standards Act (FLSA) regulations pertaining to companionship services and live-in domestic services.
Due to significant shifts in the home health care industry over the last 35 years, the Department of Labor (DOL) is proposing to change the regulations interpreting the FLSA with respect to two types of domestic workers: 1) domestic workers who provide companionship services to a person who because of advanced age or mental or physical infirmity cannot care for his or her own needs (“companion domestic workers”); and 2) domestic service employees who reside in the household where they are employed (“live-in domestic workers”). Currently, companion domestic workers are “exempt” from the requirements of the FLSA – meaning they do not need to be paid minimum wage or overtime. Live-in domestic workers are “exempt” from the FLSA’s requirement that they be paid overtime.
Today, workers who provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were first promulgated in 1974. And the DOL contends that workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. The number of workers providing these services has also greatly increased.
Companion Domestic Workers
The DOL’s proposed amendment more clearly defines the tasks that may be performed by a companion domestic worker to remain exempt from the minimum wage and overtime requirements of the FLSA. Currently, the regulations define “companionship services” as fellowship, care and protection for a person who because of advanced age or mental or physical infirmity cannot care for his or her own needs. Companion domestic workers are permitted to prepare meals, make beds, wash clothes and engage in other similar services and still maintain the exemption from minimum wage and overtime. The current regulations also allow the companion domestic worker to perform general household work (as long as it is limited to 20% of the companion’s job duties).
The proposed regulations would significantly limit the duties a companion domestic worker could engage in and still remain exempt from the FLSA. Companion domestic workers would no longer be permitted to perform unlimited care services and would be limited to duties of “fellowship and protection,” such as watching television together, visiting with friends and neighbors, taking walks, or engaging in hobbies. Incidental intimate personal care services, such as occasional dressing, grooming, and driving to appointments, would be permitted if this work is performed in conjunction with the fellowship and protection of the individual and does not exceed 20 percent of the total hours worked by the companion domestic worker in the workweek. But the companion could not perform general household tasks or many of the care services domestic workers currently perform.
The proposal also clarifies that “companionship services” do not include the performance of medically-related tasks for which training is typically a prerequisite. The current regulations specifically identify trained personnel such as nurses as outside the scope of the exemption, and this clarification more clearly identifies what constitutes medically-related services.
Live-in Domestic Workers
The DOL’s proposal also limits the application of the overtime pay exemption to individuals, families and households employing a live-in domestic worker. Live-in domestic workers employed by a third party employer would be entitled to minimum wage and overtime from that third party employer. This would be the case even if the live-in domestic worker was jointly employed by an individual, family or household along with a third party The proposed regulations would also revise the recordkeeping requirements for live-in domestic workers. Under the proposal, employers would be required to maintain an accurate record of hours worked by such workers, just as other covered employees must keep such records.
Staffing Agencies
Finally, the Department proposes to change the regulation to make clear that employees of third party employers such as staffing agencies are not exempt from minimum wage and overtime protections. This will limit the exemptions currently applied to companion and live-in domestic workers to those employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.
Any changes to the FLSA regulations on the companionship and live-in domestic services exemptions will have a significant effect on workers and employers in the home healthcare industry and will inevitably become a hot-button issue. The Department of Labor has posted a website providing detailed information about the proposed changes at http://www.dol.gov/whd/flsa/companionNPRM.htm and invites interested parties to submit written comments on the proposed rule on or before February 27, 2012 at http://www.regulations.gov.
By Kara M. DelTufo
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