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How In-Home Health Care Could Be Safer

 

With more people turning to in-home care providers as an affordable alternative to hospital care or nursing homes, there is an increasing demand for workers. From 2010 to 2020, the home health care industry is projected to grow by almost 70 percent. In order to properly compensate and protect this growing group of in-home health care workers, laws protecting their employment rights must evolve with the times. 
 

Implementing the Fair Labor Standards Act

In the early days of in-home healthcare, domestic workers were typically friends, family and neighbors of the ill, disabled or infirm. But as the U.S. population ages and the number of senior citizens grows, the need for domestic service workers continues to increase. According to research by the National Association for Homecare and Hospice (NAHC), about 12 million Americans were receiving in-home health care in 2010. And finding the right care provider is getting more difficult, too. Demographic trends show that more Americans are moving further from their loved ones than in past generations. 

In 1974, the Fair Labor Standards Act (FLSA) extended to protect domestic service workers. But, as this industry evolves to fit the needs of its growing patient population, so must the laws adapt to providers’ needs. Since its enactment in 1938, the FLSA has remained a reliable support system for workers in almost every industry. If passed, this act will meaningfully impact millions of in-home health care providers and the families they serve. 

 

How the Fair Labor Standards Act Works

In 1974, Congress amended the FLSA to cover domestic workers. As it stands today: 
 

  • Companion” workers, or nonprofessional workers, tending to the sick or infirm and performing domestic duties (e.g., cooking, cleaning and laundry) need not be paid the minimum wage or overtime, as long as their domestic responsibilities do not exceed 20 percent of their total time worked each week.
  • Professionally trained domestic workers, such as nurses, nurses aids and physical therapists, are exempt from the FLSA minimum wage and overtime requirements and instead receive a salary.
  • If the companion worker or professional domestic worker is living in the home, they are entitled to receive minimum wage, but are exempt from overtime pay.

According to the United States Bureau of Labor Statistics, under the current FLSA regulations, home health care workers make around $20,000 annually and many do not receive benefits, such as health insurance, paid time off and retirement plans. 

 

Changing Regulations to Meet Today’s Needs

In 2011, after spending a day with home health care worker Pauline Beck, President Barack Obama announced that the Department of Labor was proposing a change to the FLSA requirements to include minimum wage and overtime protections for in-home care workers. 

“…As the homecare business has changed over the years, the law hasn’t changed to keep up,” said President Obama in the speech. “So even though workers like Pauline do everything from bathing to cooking, they’re still lumped in the same category as teenage babysitters when it comes to how much they make. That means employers are allowed to pay these workers less than minimum wage with no overtime.”

If passed, the proposed rules for the Application of the FLSA to Domestic Service would:

  • Clearly define tasks performed by exempt home health care workers. 
  • Define “companionship services” as fellowship and protection activities, which may include playing cards, watching television, visiting with friends and neighbors, taking walks, or engaging in hobbies.
  • Limit the types of responsibilities that render the home health care worker exempt from FLSA requirements.
  • Amend the recordkeeping requirements for live-in home health care workers. 
  • Limit the exemption to those employed by the family or someone living in the home.
  • Entitle workers employed by a third party, such as a staffing agency, to minimum wage and overtime pay.

 

 

Republican and Organization Opposition to the Proposed Amendment

In June 2012, several Acts were introduced by representatives in opposition of the DOL’s proposed rules. Garnering support from NAHC, the Companion Exemption Protection ActEnsuring Access to Affordable and Quality Companion Care Act, andProtecting In-Home Care from Government Intrusion Act maintain current exemptions and keep the DOL from moving forward with its amendments. 

“This proposed change to a decades-old rule would take that opportunity away from many families by driving up costs and could force them to put loved ones in institutionalized care facilities,” said Senator Mike Johanns (R-NE) in a press release. “The cost of such care is often more expensive and paid through Medicaid – further straining state budgets.”

The NAHC adds to the argument by stating that the DOL’s proposed rules are based on inaccurate data from Medicare and Medicaid and will reduce the availability of care while increasing costs. 

 

An Uncertain Future for In-Home Health Care 

The comment period on the DOL’s proposed amendment closed in the spring of 2012, and the rule has yet to be finalized. If the changes are implemented, in-home health care workers will finally get compensation in accordance with today’s standards. 

For more information on the proposed rule and its progress, visit the DOL Wage and Hour Division website.

 

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