The United States Department of Labor (DOL) Wage and Hour Division issued a final rule on September 17, 2013 that will extend the minimum wage and overtime protections of the Fair Labor Standards Act to in-home workers who care for elderly people and people with illnesses, injuries or disabilities.
Under the final rule, the “companionship exemption” from minimum wage and overtime is narrowed by limiting the types of duties a worker may perform and still come within that exemption. Also, the rule provides that only individuals and families, not third party agencies such as home healthcare agencies, may claim the companionship exemption. In issuing the rule, the DOL stated that the changes will ensure that “nearly two million workers – such as home health aides, personal care aides, and certified nursing assistants – will have the same basic protections already provided to most U.S. workers.”
Beginning January 1, 2015 when the new rule becomes effective, home health care workers will only be exempt from minimum wage and overtime under the “companionship exemption” if the worker is: (1) employed directly by a member of the household of the person receiving care, not a third party agency; and (2) provides “fellowship and protection” for the elderly person or person with an illness, injury or disability who requires assistance in caring for himself or herself. The rule defines “fellowship” to mean “to engage the person in social, physical, and mental activities.” “Protection” means “to be present with the person in their home or to accompany the person when outside of the home to monitor the person’s safety and wellbeing.” The DOL gives as examples of “fellowship and protection” conversation, reading, accompanying the person on walks, going on errands or to appointments or social events with the person. “Companionship services” can include the provision of “care” which is defined as assistance with the activities of daily living, such as dressing, feeding and bathing, and the instrumental activities of daily living such as meal preparation and light housework, only if such services do not exceed 20% of the worker’s total hours.
The DOL is giving employers, consumers and their families, and the state and federal Medicaid programs that cover home health care workers an amount of time that it considers to be ample in which to adjust to the new rule. The new rule will not become effective until January 1, 2015. In the meantime, to help with understanding the new requirements, the DOL has created a dedicated web portal at dol.gov/whd/homecare with fact sheets and other materials. Employers of home health care workers should familiarize themselves with the requirements of the new rule.