New regulations from the US Department of Labor (DOL) mean most employers will need to begin paying the minimum wage and, potentially, overtime to direct care workers such as home health aides, personal care aides and certified nursing assistants.
Starting January 1, 2015, the new regulations will limit the Fair Labor Standards Act companionship services exemption to companions employed by the family or household using his or her services. Third-party employers such as health care staffing agencies will no longer be allowed to claim the exemption, even if the employee is jointly employed by the third party and the family or household.
The new regulations also will narrow the duties that an exempt companion may perform.
Under the current regulations, an exempt companion may perform:
Services for the care, fellowship, and protection of individuals who are elderly or infirm and therefore cannot care for themselves;
Activities such as making meals, washing clothes and other similar personal services; and
General household work, as long as it does not exceed 20 percent of the employee's total number of hours worked per week.
The new regulations will limit companions' duties to fellowship and protection.
Fellowship is defined as activities to "engage the person in social, physical, and mental activities," such as:
Making crafts; or
Accompanying the person on walks, on errands, to appointments or to social events.
Protection means "to be present with the person in his or her home or to accompany the person when outside of the home to monitor the person's safety and well-being."
Domestic companions also will be allowed to perform incidental personal care services, as long as they consume no more than 20 percent of the companion's time. This could include activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and instrumental activities of daily living, which are tasks that enable a person to live independently at home (such as preparing meals, driving, performing light housework, managing finances, assisting with the physical taking of medications and arranging medical care).
Any work benefiting other members of the household, such as preparing meals or performing housekeeping or laundry for other members of the household, will no longer be allowed under the new regulations.
The new regulations also will revise the recordkeeping requirements for live-in domestic help, such as babysitters, cooks, waiters, butlers, nannies, nurses and personal care aides.
The current regulations allow an employer and a live-in domestic employee to enter into an agreement that excludes from working time the amount of sleeping time, meal time, and other periods of complete freedom from duty when the employee may either leave the premises or stay on the premises for purely personal pursuits.
But the DOL said it "is concerned that not all hours worked are actually captured by such [an] agreement and paid, which may result in a minimum wage violation."
The new regulations will ban such agreements and instead require employers to track the hours worked by live-in domestic help just as they must do for other covered employees.