Home Health Care Workers Not Exempt From Labor Rules

On August 21, 2015, a decision by the U.S. Court of Appeals for the District of Columbia Circuit in Home Care Association of America v. Weil upheld the determination of the U.S. Department of Labor (DOL) that home health care workers are not exempt from the protections provided by the Fair Labor Standards Act (FLSA). Therefore, home health care companies must pay the federal minimum wage and overtime to workers providing companionship services and live-in domestic services.

The FLSA regulates minimum wage, overtime pay, recordkeeping, and youth employment standards affecting workers in the private sector and in Federal, State, and local governments. The federal minimum wage is $7.25 per hour. Many states also have minimum wage laws. In cases where a worker is subject to both state and federal minimum wage laws, the worker is entitled to the higher minimum wage. In Illinois, where the state minimum wage is higher than federal, home health care companies will now be required to pay workers a minimum of $8.25 per hour. The Illinois Wage Payment and Collection Act requires overtime after 40 hours. Further, after 40 hours of work in a workweek, the FLSA requires overtime pay at a rate not less than one and one-half times the regular rate of pay.

Generally, home health care companies pay their nurses on a per visit basis. In addition, traditionally, such agencies do not pay overtime regardless of the number of visits made by their nurses during a given week or length of time worked. These methods have not previously been in violation of the FLSA because home health care visits fell under “companionship services” which were exempt from FLSA compliance. The Weil ruling however, upheld the updated definition of “companionship services.”

Within the DOL revision of its regulations defining companionship services, the performance of any medically related task during the workweek results in loss of the companionship services exemption. The determination of whether a service is medically related is based on whether the services typically require trained personnel, such as registered nurses, licensed practical nurses, or certified nursing assistants. The determination is not based on the actual training or occupational title of the worker performing the services. Examples of tasks considered to be medically related include but are not limited to: catheter care, turning and repositioning patients, wound care, tube feeding, treating bruising or bedsores, and physical therapy. As a result of the updated definition, home health employees are no longer exempt from FLSA requirements.

Home care companies whose workers provide nonclinical services to patients in their homes and companies whose workers provide live-in services are also no longer exempt from minimum wage and overtime requirements under the revised definition of companionship services.

These changes went into effect on October 13, 2015, and the State of Illinois has publically supported the revisions. While the DOL has indicated that enforcement will begin November 12, 2015, private workers have the right to enforce the rules immediately. The changes do not apply to home-care workers who are hired directly by patients or their families, but only to those who are employed through businesses. Therefore, it is important for Illinois home health care companies and home care companies to understand the rule changes and to have a plan in place to be in compliance while avoiding unexpected costs.

If you have any questions about this ruling or whether you are in compliance with this ruling, please contact attorney Heather L. Glaser at Lavelle Law, Ltd. at (847) 705-7555 or hglaser@lavellelaw.com.