A federal judge recently vacated the third-party provider portions of the federal regulation that would have prevented home health care providers from claiming the companionship exemption in 2015. Unless this ruling is challenged by the Department of Labor, home health care workers who perform certain duties may continue to be exempt from the overtime obligations under the Fair Labor Standards Act (FLSA).
Companies should remain focused. The decision in Home Care Association of America v. Weil made clear that third-party providers may continue to use the companionship exemption. However, the decision did not affect the significant narrowing of the type of work that may be considered exempt "companionship services." Expecting the issue to have been mooted by the third-party provider portions of the regulation, many home care providers have not focused on this important issue. The regulation caps companionship service to 20% of the hours worked and includes a non-exhaustive list of capped incidental "care" services, including: dressing, grooming, toileting, driving to appointments, feeding, doing laundry, and bathing. Effective January 1, 2015 exempt home care aides may perform only limited "companionship services" and retain their exempt status.
Home health care providers that wish to rely on the companionship exemption after January 1, 2015, must ensure that:
(1) the time workers spend performing "care" services does not exceed 20% of their hours per patient and per week, and
(2) workers do not perform any general household work.
If workers do not satisfy both conditions, employers must pay workers overtime at the rate of one-and-one-half their regular rate of pay. Additional developments are expected on this issue. Employers should stay tuned.