Home Care Industry Legal Update: Vaccines, Live-in Caregivers & More

Wondering about the latest on the COVID-19 vaccines and how the home care industry is responding, how the new administration may impact the industry, and what you can do to take advantage of the Opinion Letter the U.S. Department of Labor recently issued on live-in caregivers? You’re in luck! A new webinar by Littler Mendelson, Private Duty Home Care at NAHC and HCAOA will provide you with the insight and answers you need.

We are hosting an industry webinar covering all of these topics Friday, January 22, 2021 from 12:00 to 2:00 p.m. EST. We hope you can make it.

During the webinar, we will discuss:

  • The currently authorized vaccines
  • Home care’s place in line in the states
  • The EEOC’s views on the vaccines
  • How home care agencies are responding to the new vaccines
  • Whether a home care agency could and/or should make vaccination mandatory for employees
  • Issues with monetary incentives for employees to get vaccinated
  • Messaging to employees about the vaccine
  • Responding to questions about the vaccination status of employees from clients/patients
  • Vaccine access issues
  • What to expect from the DOL under the Biden administration
  • How you can use the new Opinion Letter to address compensation issues with your live-in and extended shift caregivers

These webinars are intended to provide regular legal updates to assist home health and home care providers trying to navigate through the complex and seemingly ever-changing legal landscape brought about by the COVID-19 pandemic.


Dept of Labor Announces Annual Adjustments to OSHA Civil Penalties

The U.S. Department of Labor has announced adjustments to Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments for 2021. In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. Under the Act, agencies…

Dept of Labor Issues Favorable Live-In Home Care Worker Opinion

By Littler Mendelson

In an excellent development for the home care industry, the U.S. Department of Labor (DOL) issued an Opinion Letter permitting agencies to utilize consistent “shift rates” that are inclusive of a pre-payment of overtime when agencies compensate caregivers providing live-in services and extended shift services of 24 hours or more. Littler Mendelson requested this opinion on behalf of the industry to clarify the rules around this practice with the hope of eliminating much of the litigation that has resulted due to the misunderstanding caregivers often have with the structure of their pay for live-in and extended shift work under this type of program.

A “live-in” caregiver, under federal law, is a caregiver who works “extended periods” in the client’s home. This could be someone whose sole residence is the client’s home, or it could be someone who spends as little as five consecutive days or nights per week in the home (such as working Monday at 7 AM to Friday at 7 PM). An “extended shift” caregiver is at the client’s home for over 24 hours, but something less than the time required to be considered a live-in. This distinction is most important for determining how many hours can be potentially excluded from pay. An extended shift caregiver may have up to eight hours of sleep and potentially three hours of meals excluded from pay for each 24 hours of work (depending on state law). It is possible for live-in caregivers to have even more downtime excluded when they are free from work without losing the ability to deduct additional time for bona fide sleeping time.

Agencies frequently discuss compensation for such shifts on a “per-shift” basis because this is generally how live-in and extended shift caregivers evaluate the financial value of the assignment (rather than a specific hourly rate). Some agencies have found they need to quote pay rates in this way to encourage caregivers to take specific assignments. The Opinion Letter is helpful in establishing that agencies are permitted to blend overtime into each shift even before it is earned within the workweek to communicate the average shift rate based on the total anticipated hours worked.  However, there are specific rules that must be followed to fully take advantage of this Opinion Letter.

Major complications can arise when a caregiver is without a clear understanding of the pay structure when working live-in and extended shifts. Often caregivers think that they will be paid a consistent amount per shift regardless of the number of hours they work.  This is not a shift rate but an improper day rate.  This pay method can violate the federal Fair Labor Standards Act (FLSA). Under the FLSA, non-exempt employees (such as caregivers employed by home care agencies) must be paid at least the minimum wage for all hours worked and an overtime rate of at least 1.5 times their regular rate for hours worked over 40 in a workweek (we are putting aside more restrictive state laws, such as those in California and Colorado, which have additional rules).  Non-exempt caregivers paid on day rates that do not adjust based on actual hours worked may have a claim for overtime even if the day rate is high enough to cover minimum wage and overtime.  This is because non-exempt employees must record actual time worked and be paid the appropriate amount of overtime earned as a result of that work.

To avoid confusion between an adjustable shift rate versus an inflexible day rate, an agency MUST properly explain the shift rate pay method in a written agreement signed by the caregiver. The arrangement should also include the hourly rate of pay, expected hours of work each shift, and anticipated number of shifts so that it is clear how the caregiver is being paid.  The agreement should expressly state that the agency is paying advanced overtime as an administrative convenience rather than as a result of a legal entitlement.  The caregiver still needs to track her actual hours of work each week so that adjustments can be made for hours worked beyond the anticipated schedule at the appropriate rate. It is imperative that an agency not just track the start and end of each workday but also track any other periods when a caregiver isn’t supposed to be on-the-clock. Similarly, the agency needs a method to track any interruptions when the employee is not supposed to be working during meal or sleep periods but is called to work.

The DOL’s Opinion Letter paves the way for agencies to simplify live-in compensation practices with the protection of the good faith defenses available under federal law to the extent the program is set up correctly.  Agencies should no longer be wary of providing clients with live-in and extended shift services. A properly crafted program that complies with state and federal law and incorporates the appropriate time tracking measures will not significantly change the agencies risk profile.  So please get out there and help those seniors!

New Dept of Labor Rule Leaves Home Care Unclear on Leave Exemption

On late Friday, the U.S. Department of Labor issued a “Temporary Rule” in response to an August 3, 2020 decision of a federal court in New York that invalidated the department’s earlier rulemaking. While there remains a legal issue as to whether the court’s ruling is limited to New York, DOL chose to issue a…

How 3 New Dept of Labor Opinion Letters Can Help Your Agency

The U.S. Department of Labor (DOL) delivered a series of powerful shields to employers in the home health, hospice and home care industries in the form of three opinion letters.  These letters provide useful guidance on mileage reimbursement, the “salary plus” pay method that serves as an alternative to the “pay per visit” pay method,…

Dept. of Labor Issues New FAQs for Paid Leave as Schools Reopen

On August 27, the U.S. Department of Labor’s (DoL) Wage and Hour Division (WHD) published new frequently asked questions (FAQs) for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) related to the reopening of schools. This guidance explains eligibility for paid leave relative to the varied formats…

NAHC: Home Care and Hospice Employees are Exempt Providers Under FFCRA

The US Department of Labor issued guidance over the weekend on standards and application of the extended sick and Family Medical Leave Act (FMLA) leave under the recent Covid-19 stimulus bills. The guidance addresses an important issue affecting home care and hospice companies. NAHC and others sought to have an exemption applicable to a “health care provider” to…

NAHC Files Comments to Dept. of Labor on if Home Care Workers Eligible for Leave

The National Association for Home Care & Hospice (NAHC) argued on Monday, March 23, in comments to the Department of Labor that nurses, therapists, home health and home care aides, and other personal care attendants be classified as “health care providers” and, thus, not “eligible employees” and subject to exclusion in the Emergency Family and…

Department of Labor Revises Rules for Joint Employer Status

On January 12, 2020, the Department of Labor announced a final rule to revise and update its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA). The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual…

Department of Labor Rule Extends Overtime to Over a Million Workers

The United States Department of Labor announced earlier this week a final rule to make 1.3 million American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA). This final rule will be effective on January 1, 2020. This final rule updates the earning thresholds necessary to exempt executive, administrative, or professional employees…