The D.C. Circuit Court of Appeals has declined to stay its recent revival of the Final Rule eliminating the companionship and live-in domestic services exemptions for third-party providers. As we previously reported in a client alert, on August 21, 2015, the D.C. Circuit unanimously upheld the validity of the Final Rule. The home care industry litigants that challenged the Final Rule then applied for a stay of the mandate pending their filing of a petition for review with the U.S. Supreme Court. However, the D.C. Circuit has declined to issue a stay. Thus, absent further judicial, legislative, or regulatory action, the Final Rule is currently slated to go into effect on October 13, 2015.

We also recently reported that the U.S. DOL announced that it would not begin enforcement of the Final Rule until 30 days after the D.C. Circuit decision became effective. This administrative grace period, however, may not prevent private plaintiffs from bringing civil suits under the Final Rule. So, home care employers should prepare now to be in compliance with the Final Rule no later than October 13, 2015. 

The Final Rule will mark a significant change for agencies that employ home health aides by extending federal minimum wage and overtime protections to these employees for the first time. Special attention should be devoted to tracking all hours of work, including travel and training time, and properly determining the “regular rate of pay" for all home health aides.