We Count on Home Care: Extending Protections to Direct Care Workers

by Laura Fortman on September 17, 2013 · 2 comments

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Direct care workers help countless Americans live at home, go to work, and participate more fully in their communities.  We need fair wages for the valuable services that direct care workers provide. Due to out-of-date regulations, however, for too long these workers have been excluded from the Fair Labor Standards Act’s minimum wage and overtime protections. Earlier today, the department corrected that, announcing a final rule that gives these nearly 2 million workers the same basic protections already provided to most U.S. workers – including those who perform the same jobs in nursing homes.  This step will also help ensure that home care consumers have access to high quality care from a stable and increasingly professional workforce.  Under the new rule, direct care workers employed by third-party employers, such as home care agencies, will receive minimum wage and overtime protection. Workers employed solely by a family or individual may be covered if they are performing medically-related duties or are providing more than a limited amount of care in addition to fellowship and protection. This is real work that needs to be recognized as such.

Since President Obama announced the department’s proposed rule, we carefully reviewed and considered more than 26,000 comments raised by the diverse parties affected by this rule – including consumers, their families, home care agencies, direct care workers and state Medicaid programs. We wanted to make sure that we got the rule right. About 80 percent of the comments urged us to make what we proposed the final rule. But we made several meaningful changes in response to concerns we heard, such as those raised about the impact on state Medicaid and other public programs that enable people with disabilities to live independently.

In particular, we listened to the states and other stakeholders that encouraged us to ensure that the rule was implemented in a way that allowed states to make any necessary program adjustments so as not to disrupt services to the consumers and families who depend on them. That is why we took the step of extending the effective date until Jan. 1, 2015. We believe that this phase-in is warranted to ensure that any necessary adjustments can be made in a way that ensures a seamless transition  for Medicaid participants who rely on these critical supports

We made other important changes to the proposed rule based on feedback we received:

  • In order to simplify the rule and better meet consumers’ needs, we took a more flexible approach to defining the category of care that a direct care worker would be able to spend up to 20 percent of his or her time providing and still be considered exempt from minimum wage and overtime.
  • We simplified the definition of medically related services. Generally, workers who provide medical care do not qualify for the companionship services exemption.
  • We provided an interpretation of how the law applies to paid family caregivers in certain Medicaid or certain other publicly funded programs.
  • We revised outdated regulatory language to reflect contemporary terminology regarding elderly persons and people with disabilities.
  • We changed recordkeeping requirements to allow employers to request that live-in workers track their hours, in recognition of the fact that many consumers have cognitive impairments that may make tracking hours difficult.

Over the next 15 months, we will work closely with the Department of Health and Human Services, the states and other stakeholders to provide technical assistance to ensure that the final rule is implemented in a way that minimizes any potential disruption in services, enables implementation to be accomplished in a person-centered way for Medicaid beneficiaries, and supports the progress that has been made in developing home and community-based services.

We are hosting a series of webinars, and have created a new Web portal with fact sheets, FAQs, interactive web tools and other materials to help everyone understand the new requirements. Also, there is a toll-free phone number −1-866-4US-Wage (487-9243) − with staff available across the country to answer your questions.

An investment in the direct care workforce is an investment in the individuals and families they serve. Elderly persons and people with disabilities and their families count on direct care workers every day to enable them to live fuller lives, to remain involved in their communities, to go to work, and to live with dignity. By recognizing and valuing these essential contributions, we help ensure that everyone − workers and families together − have the opportunity to thrive.

Laura Fortman is the principal deputy administrator for the Wage and Hour Division.

{ 2 comments… read them below or add one }

1 Kathy Channing November 23, 2013 at 11:29 am

Hi,
I am writing concerning a job interview I had this past week. This position is for a non-medical home care job, assisting a paraplegic for 48 hours. Even thou it is non-medical, you are to provide personal cares as a CNA, or PCW would preform, this includes pivot transfers, ADL’s, etc. My question is, how can this agency pay less than minimum wage (6.25 hour in Wisconsin-minimum wage is 7.25 per hour)? The employer said, they do not pay sleep rate-however, you have to remain at the residence, so technically you are still working. I am so confused? The employer also told me that no matter how many 24 hour days you worked straight, you would be paid a flat rate of 150.00 per 24 hour day worked…so he can work you 96 hours straight and pay you 600.00? Please help me to understand this. Thank you, Kathy

2 Margie Skibinski March 1, 2014 at 11:48 am

The new FLSA regulations are long over due in giving home health care workers the treatment that they deserve. We have always paid our health workers overtime and believe that it has been a key contributor to our success. We actively recruit new home care employees. However, the FLSA falls short in the fact that privately hires home care workers are exempt from the overtime regulations. Privately hired individuals are most vulnerable to unscrupulous work practices and, as a group, are most in need of labor protection. DOL did a great job protecting home care workers and treating them equally. But… DOL needs to take the next step to ensure that all home care workers are treated equally. No home care worker left behind!!!

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