November 15, 2013

Healthcare.jpgAre The Pay Rules For Home Health Care Workers Changing?

Overtime pay and minimum wage rules will become the rule rather than the exception for home health care workers in the future. The Department of Labor (DOL) recently published its “final rule”, which would do away with the exemption from minimum wage and overtime pay for home health care employees in all but a very narrow range of pure “companionship” services.  The changes will be significant for home health care employers.  Fortunately, the new rule does not go into effect until January 1, 2015, so home health care employers will have time to adjust their staffing and pay practices. 

Previous Scope of Exemption

The “companionship services” exemption, which DOL previously recognized for most home health care workers will be going away. The previous exemption covered not just providing “fellowship, care and protection”, “household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes and similar services”,  but also allowed the worker to give medicine, change catheters, take vital signs, and do other more health-care related functions, including simple physical therapy.

New Home Health Care Worker Exemption Greatly Narrowed  

The exemption will not be allowed after January 1, 2015, for employees spending more than 20 percent of their working hours providing what are defined “care activities”.  Those care activities are “assisting with activities of daily living (such as dressing, grooming, feeding, bathing, toileting and transferring)” or with “instrumental activities of daily living, which are tasks that enable a person to live independently at home (such as meal preparation, driving, light housework, managing finance, assistance with the physical taking of medication, and arranging medical care).”  Probably very few workers in the home health care area will be able to meet this 20 percent limitation.

What Home Health Care Employers Need to Do to Comply

Employers in this sector will need to review their exempt versus non-exempt classification of home health care employees, revise their payroll practices to properly track and pay minimum wage and overtime to workers who can no longer be classified as exempt, determine how to appropriately pay these employees for overtime for all hours worked, and devise other staffing arrangements to help meet the additional costs the reclassification of these workers to non-exempt employees will bring.  

Possible Alternative Pay Arrangements

There are some other pay arrangements for non-exempt employees under the wage and hour laws that allow employers to pay just half-time for over 40 hours of work per week instead of time and one-half, but they are complicated to design and implement.  These alternate pay methods include pay-per-visit, day rate, fluctuating workweek, and fixed salary for fixed hours.  If you wish to explore whether attempting such alternate pay plans is worth the effort for your business, you will definitely need the guidance of experienced employment law counsel.  

Start Planning Now

If you are an employer affected by these changes in the DOL regulations, you would be wise to start thinking and planning now about what changes you will need to make in your pay practices and staffing.  To be safe that you are correctly complying with the new requirements, you should begin implementation of your new practices well in advance of the January 1, 2015, effective date. 

To learn more about Adair Buckner and her practice visit her profile page and her Labor & Employment Law page.

Adair M. Buckner, Attorney at Law, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-220-0150 or This material is not intended to be legal advice. The contents are intended for general information purposes only.

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