Administration Proposes FLSA Coverage for Home Health Aides

By Liza Casabona

In a long anticipated move, the Department of Labor today proposed extending coverage under the Fair Labor Standards Act to 1.79 million workers providing in-home care services to the elderly and infirm.

Workers categorized as “companions” are currently exempt from the minimum wage and overtime protections of the Fair Labor Standards Act. The rule proposed by DOL would extend those benefits to workers employed by a third party and would clarify the tasks that can be performed by a companion considered exempt from the protections. Workers employed directly by a family would still be exempt from FLSA benefits under the proposed rule.

States vary on how they treat companionship workers. Twenty-nine states currently extend no minimum wage or overtime benefits to companionship workers. In addition to providing both benefits to companionship workers in all states, the proposed rule would also extend federal wage and hour enforcement and federal education protections to all states.

There have been several unsuccessful attempts in Congress to pass legislation. Thompson’s Employer’s Guide to the Fair Labor Standards Act covered the issues associated with altering the companionship exemption regulations in its August 2011 issue.

According to the administration, the workers that would be impacted by the proposed changes are predominantly female, and a significant number are minorities and receive public benefits such as food stamps and Medicaid. Labor Secretary Hilda Solis argued that extending minimum wage and overtime benefits to those workers is “crucial to the quality of life for many families.”

According to the notice, “workers who today provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were promulgated.”

DOL argues that many in-home care workers provide services such as wound care, tube feeding or physical therapy, and therefore deserve access to FLSA benefits.

“Today’s action will ensure that these men and women get paid fairly for a service that a growing number of older Americans couldn’t live without,” President Obama said in announcing the proposed rule.

According to the administration, the following states currently extend no minimum wage or overtime benefits to companionship workers. Alabama, Alaska, Arkansas, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wyoming. Nearly half of the nation’s home care workers work in these states.

Sixteen states extend both minimum wage and overtime coverage to most home health care workers:  California, Colorado, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Jersey, New York, Pennsylvania, Washington, and Wisconsin.

Five states and the District of Columbia extend minimum wage, but not overtime coverage to home care workers: Arizona, Nebraska, North Dakota, Ohio, and South Dakota and the District of Columbia.