Wage Agency Clarifies Rules for Pro Caregivers

WASHINGTON (CN) - Employers of those who offer "direct care" to people who are elderly or have disabilities will be required to pay them minimum wage and overtime, under new regulations effective Jan. 1, 2015.

Prior to 1974, minimum wage and overtime provisions of the Fair Labor Standards Act did not extend to workers providing direct care to people in their homes unless they were employed by entities that met a minimum annual revenue threshold. Congress amended the FLSA in 1974 to include those who work in private households or small companies, but left out those workers who provide companionship services and those providing live-in domestic services.

In 1975, the Department of Labor's Hour and Wage Division implemented the exemptions, allowing third-party employers to claim the companionship services and live-in domestic service employee exemptions. The workers left out of the minimum wage and overtime requirements, however, were meant to be those providing babysitting services, including those who "sit" or "watch" people who are elderly or disabled and perform some ancillary duties, "such as meal preparation, bed making, washing of clothes and other similar services." It was not intended to exclude "trained personnel such as nurses, whether registered or practical, from the protections of the act," according to the action. Since 1975, the home care industry has changed, with more people receiving care in their own homes rather than in nursing homes or institutions, according to the Department of Labor.

In contrast with the 'babysitting services' the exempted workers provide, along with assisting people in their daily activities, such as bathing, dressing, performing housework and preparing meals, direct care workers provide medical care such as managing medications or performing tracheostomy care, which was previously almost exclusively provided in hospitals by trained nurses, according to the action. Tracheostomy care involves the care of a hole surgically created in the neck to provide an alternative air way.

"Workers who provide home care services, referred to as 'direct care workers' in this [regulation] but employed under titles including certified nursing assistant, home health aides, personal care aides and caregivers, perform increasingly skilled duties. Today, direct care workers are, for the most part, not the elder sitters that Congress envisioned when it enacted the companionship services exemption in 1974, but are instead professional caregivers."

The idea is to protect direct care workers by making sure they are being paid for the hours they work. The regulation accomplishes the goal not only by clarifying the exemption requirements, but by adding a provision that requires "the keeping of actual records of the hours worked by such employees," the action noted. Additionally, third-party employers, such as home care agencies, will no longer be able to claim the exemptions.

The Department of Labor received thousands of comments on the new regulation, with some commenters fearing it will interfere with the growth of home- and community-based caregiving programs, leading to an increase in institutionalization.

The Department of Labor says its action will boost pay and improve the quality of care.

"To the contrary, the department believes that ensuring minimum wage and overtime compensation will not only benefit direct care workers, but also consumers because supporting and stabilizing the direct care workforce will result in better qualified employees, lower turnover and a higher-quality of care," the Department of Labor wrote in its action.

The regulation is effective Jan. 1, 2015.

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