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Fight for home health care worker wages goes into overtime.
By Marcus Wilbers on September 26, 2013 at 6:00 PM

HomeHealthCareLast week, the Department of Labor announced a final rule that will extend Fair Labor Standards Act (FLSA) minimum wage and overtime coverage to home health care workers. The rule will have far-reaching impacts – but not until January 1, 2015, when it takes effect.

Home health workers “employed by an employer or agency other than the family or household using their services” are currently classified as exempt from FLSA’s minimum wage and overtime requirements under the “companionship services” exception. 29 C.F.R. § 552.109(a). “Companionship services” are defined as “those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs.” 29 C.F.R. § 552.6. The regulation goes on to cite household work, meal preparation and washing clothes as examples of “companionship services.”

Therefore, the current FLSA exemption is premised on two things:

  1. employment by a third party (ie: not the person or household receiving care) and
  2. provision of companionship services. The new rule modifies both components.

First, it removes the third party employment component. Now, any worker employed by a third party to provide companionship services is entitled to minimum wage and overtime. By contrast, workers employed directly by the person receiving services or that person’s family will continue to be exempt from minimum wage and overtime.

Second, the rule clarifies and significantly limits what constitutes “companionship services.” The debate over the proper classification of home health workers has long been the nature of the services the home health care worker performed. For example, is dispensing medication or ensuring adherence to strict dietary standards “companionship services” or is it something more? The final rule clarifies that workers who perform medically-related services for which training is typically a prerequisite are not providing “companionship services” and therefore are not exempt from minimum wage and overtime requirements.

The change has been (and still is) a long-time coming. The DOL proposed the rule change in December 2011. In response, it received 26,000 public comments, many of which were opposed to the proposed rule. In addition, the rule will not take effect until January 1, 2015. Many regulations take effect within 60 days after passage. The additional time will give families, agencies and Medicaid programs time to prepare for the change.

The rule change is expected to affect nearly two million home health care workers, the vast majority of whom are currently employed by home care agencies.

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