Home Health Care: A Growing Industry
More and more workers are providing in-home health care to the elderly and disabled. Home health aides provide basic health-related services as well as social engagement and other support that allows their clients to live at home rather than in a full-time care facility.
But unfortunately for the nation’s two million home care aides, federal law categorizes them as providers of “companionship services,” meaning they have no minimum or overtime wage protections. The median annual wages for home health care aides was about $20,000 in 2012.
Department of Labor Updates Companionship Rule
In 2011, the Department of Labor announced it would revise the companionship exemption rules to provide protections for these workers. The new rule was proposed in 2013 and would extend minimum wage and overtime protections to all “direct care workers.” This includes home health aides, personal care aides, and CNAs. The rule also makes clear that care workers who provide medically-related services are not companionship workers and cannot be considered exempt from minimum and overtime wages.
Home Health Care Workers Providing Medically-Related Services Are Not Exempt
To qualify for the companionship exemption under the new rule, an individual must spend her time providing “fellowship and protection.” This includes social, physical, and/or mental activities, and protection means accompanying the person receiving services at home or outside of the home. Home health care workers who provide “medically-related services” are not covered by the companionship exemption.
A service is “medically related” if it is a service that typically requires training to perform, and is usually performed by trained personnel like RNs or CNAs. An example would be changing bandages, taking vital signs, or other diagnostic tasks. Under the old rule, a worker providing these medically-related services in addition to providing companionship was considered exempt from minimum and overtime wages. The new rule makes clear that a direct care worker who provides these medically related services is not exempt from minimum or overtime wages.
Home Health Care Workers Assisting with “Activities of Daily Living” Are Not Exempt
Under the new rule, a home health care worker who spends more than 20% of her work hours on “activities of daily living” or “instrumental activities of daily living” is not covered by the companionship exemption. These activities include, but are not limited to, the following activities:
• Managing finances
• Meal preparation
• Arranging medical care
If more than 20% of a worker’s time is spent on these activities, she is not performing companionship services and must receive minimum and overtime wages.
Third-Party Employers Cannot Claim Companionship Exemption
Home health care workers employed by the person receiving care (or by that person’s family) who provide “fellowship and protection” rather than medical services are still exempt under the “companionship exemption” with the new rule. But third-party employers, such as home care staffing agencies, are not entitled to claim the companionship exemption.
This means an individual family hiring a home health care worker might still be able to use the companionship exemption and not be liable under the FLSA for minimum and overtime wages. But it prevents a corporation that employs home health care workers from evading minimum and overtime wages.
Litigation Has Prevented Implementation of the New Rule
Unfortunately for all of the workers who stand to benefit from these new protections, a court challenge put the planned January 2015 implementation of this rule on hold. In Home Care Association of America v. David Weil, the D.C. District Court struck down the new definition of “companionship services” and the third-party employer rule. The case has been appealed and awaits a decision.