New home care worker, labor protections rule partially delayed

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Monday, October 20, 2014

Two stick figures holding hands, one is standing and one is in a wheelchair

Home Care Workers Rule Delayed

New regulations extending minimum wage and overtime protections to an estimated two million caregivers nationwide will go into effect, as expected, on January 1, 2015.

However, the Department of Labor, in a document published October 6 in the Federal Register, announced it will delay enforcement of the rule, in response to opposition from some states and industry representatives, as well as some disability advocates concerned about potential unintended consequences of the rule.

Since 1974, the Depression-era Fair Labor Standards Act has distinguished between “domestic service workers” and so-called “companion workers,” the latter of whom were not afforded minimum wage and overtime protections. Originally, this exception was aimed at babysitters, but came to encompass a significant number of in-home workers as the elderly population increased and more people with disabilities received home health care.

The DOL proposed new regulations in 2011 to close this loophole, finalizing them in September 2013. Specifically, the regulations modified the definition of “companion services” and prohibited third-party employers – i.e. people other than those receiving services – from claiming this exemption.

The rule set out a 15-month adjustment period before the regulations were to go into effect, which remains unchanged. For the first six months, the DOL will not enforce the rule, as it seeks to continue working with states to adjust their programs.

For the subsequent six months, the DOL, as explained in the Federal Register, will “exercise prosecution discretion….with particular consideration given to the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance.”

In a blog post, the DOL explained that the delay is necessary to further the twin goals of “maintaining person-centered services” and “recognizing the value provided by home care workers.”

“We have consistently emphasized the importance of implementing the rule in a manner that both protects consumers and expands wage protections for direct care workers,” the DOL wrote in the blog post. “We believe this non-enforcement policy will help achieve both of those goals.”

Many of the in-home workers who will now be covered are paid through publicly funded programs. Budgeting for these additional costs was the chief concern for many of the states and industry representatives who urged the delay.

The disability rights group ADAPT, remains concerned that the rule could force states and companies to lay off home health workers, rather than shoulder the additional costs, if they do not received increased financial support.

“The basic problem with the [overtime] changes is that without funding in place to pay for them, states and provider agencies will simply cap the hours attendants can work to avoid any overtime costs and liability,” ADAPT said in a statement, according to the Huffington Post. “This will undercut the ability of people with disabilities and seniors to live in the community.”

Sen. Tom Harkin (D-IA), the author of the Americans with Disabilities Act, applauded the DOL’s efforts to move forward with the rule.

“The final rule will result in a more stable long-term care workforce which will receive higher wages and experience better work conditions,” Harkin wrote in a statement. “A careful implementation of the final rule will result in services and supports for those who are aging and those with disabilities that will allow them to continue to live in their homes and communities.”