Delay in Enforcement of Companionship Exemption, Relates to Home Care Services

The DOL has maintained the effective date of the rule as January 1, 2015. However, it is delaying any enforcement of the rule for 6 months, January 1 to June 30, 2015. After that period, DOL indicates that it will use its discretion in enforcement, taking into consideration whether affected parties, particularly state programs such as Medicaid, are undertaking good faith efforts to bring about eventual compliance.

Scheduled for official publication tomorrow, the Department of Labor has offered this 8-page .PDF detailing their decision.

(Source: William A. Dombi, Esq. Vice President for Law at the National Association for Home Care and Hospice)

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In addition, Laura Fortman, Deputy Administrator of the Wage and Hour Division for the U.S. Department of Labor issued the following statement:

A little more than a year ago, Secretary of Labor Tom Perez announced a final rule that extended minimum wage and overtime protections to home care workers – the same protections provided to most U.S. workers, including those who perform the same work in nursing homes. At that time, Secretary Perez said, ‘Today we are taking an important step toward guaranteeing that these professionals receive the wage protections they deserve while protecting the right of individuals to live at home.’ The effective date for the home care final rule, which extends minimum wage and overtime protections to direct care workers, will remain January 1, 2015. The department also announced a time-limited, non-enforcement policy with respect to the requirements under the rule.

Since it was published, we have maintained focus on implementation of the final rule in a manner that achieves two goals: extending basic labor protections to home care workers, and ensuring that people with disabilities and seniors continue to have access to critical home and community-based services, particularly services delivered through innovative models of care. Over the past year, we have engaged in proactive, intensive outreach and technical assistance efforts to help all 50 States and a wide variety of stakeholders with implementing the rule in this manner.

We know that upholding these two principles ̶ the importance of maintaining person-centered services while at the same time recognizing the value of the work provided by home care workers ̶ brings forth sensitive issues that affect people’s lives directly. We’ve heard about the woman who left her job as a home health aide to work at a fast food restaurant because it paid better, and the father who fought to obtain support services that enable his adult son with disabilities to live at home. We know that the mother who is now a home care worker may, later in life, depend on another home care professional to provide services that help her continue living in her community. We have kept all these perspectives front and center during our technical assistance and stakeholder outreach efforts, and we will continue to do so going forward.

When we announced the final rule, we provided a 15-month implementation period before its effective date. We did so out of recognition that home care services financing is complex, and that making adjustments to operations, programs and budgets in order to comply with the rule would take time. Some states, tell us that they’re ready to implement the rule. Others, because of budget and legislative processes, have requested an extension.

After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance. Throughout 2015, we will continue to provide robust compliance and technical assistance.

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. We believe this non-enforcement policy will help achieve both of those goals.

For further information, including the Federal Register Notice regarding the non-enforcement policy, please visit www.dol.gov/whd/homecare. Questions can be directed to homecare@dol.gov.

Thank you,

Laura Fortman
Deputy Administrator, Wage and Hour Division
U.S. Department of Labor

UPDATE:

On January 8, 2016, a brief was filed with the Supreme Court by a group of States’ Attorneys General urging the court to hear the case and invalidate the new Department of Labor rules regarding overtime pay for Home Care workers. This adds a new perspective to the call to invalidate these rules, which could persuade the Court to consider it. In our view, it is still a longshot that the court will hear the case, but this is certainly an interesting new development. Read more here: National Association of Home Care and Hospice announcement.