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!

The Race for a COVID-19 Vaccine

Many of you have been asking whether you can make the COVID-19 vaccination mandatory for your employees now that it is starting to become available. In most states, employees within our industry will be included in the first tier of recipients. But what does this mean, given that some polls suggest 40% of the population wouldn’t voluntarily get vaccinated? Can we require employees to get vaccinated?

To answer those questions, Littler has published a 29 page-white paper. The Readers Digest version – along with some additional thoughts – are below. We covered this topic during the December 15 virtual home care and hospice presentation with Bill Dombi of the National Association of Home Care & Hospice. If you have not yet done so, you can register to watch the event here.

  • We recommend waiting before taking a firm position on “mandatory” vaccinations.

o  First, you must understand the actual vaccine that is potentially available to your workforce. Are there any exclusions in the emergency use authorizations on who is eligible for the vaccine from a medical perspective (i.e., people with certain preexisting conditions)? You wouldn’t want to make it mandatory for them to get vaccinated.

o  We also need to know more about the side effects and how effective the vaccines are in practical use. You could see the potential argument if you made employees choose between their job and a brand new vaccine that may have negative side effects and not be as effective as initially thought.

o  Waiting will also give you time to see how your workforce is reacting to the new vaccines. Are they enthusiastic or reticent?

o  Similarly, it is good to know how the rest of the industry will respond. There is a safety in numbers, particularly when we know plaintiff attorneys are circling on this issue.

o  Also, maybe the government will make the call for you. As you know, some states require flu shots for healthcare workers, so it is possible certain state governments could treat a COVID-19 vaccination the same way.

  • It is important to note the quotation marks I used above. I did that because employers really cannot make vaccinations completely mandatory. They must always allow ex
    ceptions based on health and religious beliefs.

o  The EEOC already has stated that employees may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents them from taking the influenza vaccine, and there is no reason to believe that the EEOC would stray from this view when dealing with a vaccine for COVID-19. (Note that a similar analysis would apply to pregnant employees.)

o  Under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him or her from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII. This is a tricky area – you would want to talk to an attorney before terminating someone who refuses to vaccinate on religious grounds.

  • A few other points:

o  Mandatory vaccinations may lead to potential workers’ compensation claims from employees who suffer an adverse reaction to a potential vaccine.

o  An employer that does not adopt measures to prevent the spread of the coronavirus at work adequately may face liability for failure to comply with its general duty to provide a safe workplace.

o  It is likely that robust workplace safety policies, even in the absence of an employer vaccination mandate, can meet this obligation, particularly based on the anticipated level of uncertainty regarding the effectiveness and/or potential side effects of a vaccine.

Given all of this, let me offer a few suggestions some of our clients are using to encourage employees to become vaccinated:

·     Pay employees who get vaccinated a one-time bonus (probably the best option of the three).

·     Limit shifts for those who do not get vaccinated to nonclient facing roles, citing patient safety concerns.

·     Require employees who do not get vaccinated to use PTO concurrent with any sick leave for quarantining.

As a final note, you also might be interested to know that teachers are in Phase 1B of the CDC/ACIP vaccination plan, which could start within the month. This is important to the extent you have employees who cannot work because their kids are home and unable to attend school in person. We hope this means we will be returning to regular order in the near future.

“Littler: Ask the Experts”

Through Private Duty Home Care at NAHC’s partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question, from you our members, related to workplace issues and topics that will be answered from our experts and partners at Littler. 

This week’s question comes from one of our Private Duty Home Care members and concerns pay for travel time to assignments.

Question: I just started my own agency and one of my employees, a home care aide, is asking if she is entitled to additional pay for the time it takes her to drive to her client’s homes. Is this something I am required to pay?

Answer by Angelo Spinola

Different states have different rules for travel time, but generally speaking work related travel between client homes within a single day of work must be paid under federal and state law.  Under federal law, the Portal-to-Portal Act eliminates “from working time certain travel and walking time and other similar ‘preliminary’ and ‘postliminary’ activities performed ‘prior’ or  ‘subsequent’  to  the  ‘workday’  that  are  not  made  compensable  by  contract,  custom,  or practice.”  29 C.F.R. § 785.9.  Thus, employers do not typically have to compensate employees under the following two situations: (1) normal home-to-work and work-to-home travel; and (2) other activities considered preliminary and postliminary to an employee’s principal job activities. Id.   As such, home to work, or work to home travel, is not compensable in an ordinary situation. 

 Under federal law, assuming an employee has engaged in no work activities prior to the start of travel, employers generally do not have to count as time worked the time an employee spends “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities, which such employee is employed to perform” either at the beginning or end of the workday.  29 C.F.R. § 785.34.  However, travel time from job site to job site during the course of the work day is considered work time. 29 C.F.R. § 785.38. The United States Department of Labor has advised that, where the travel is not direct from job site to job site, such that the employee is relieved from duty for a period sufficient to engage in purely personal pursuits, only the time necessary to travel directly from the first job site to the second job site is considered compensable travel time.  See United States Department of Labor, Wage and Hour Division, Domestic Service Final Rule Frequently Asked Questions (FAQ), http://www.dol.gov/whd/homecare/faq.htm.  The U.S. DOL’s FAQ materials provide the following example:

Tiffany is a direct care worker who is employed by Handy Home Care Agency. She provides services to two of the agency’s clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Tiffany drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson’s home at 11:30am and goes to a restaurant for lunch, shops for herself, and then arrives at Mr. Smith’s home at 2:00pm.

Because Tiffany is completely relieved from duty long enough to use the time effectively for her own purposes (i.e., lunch and shopping) not all of the time is hours worked. The 30 minutes required to travel between the two homes is hours worked and, as of January 1, 2015, must be paid by the Handy Home Care Agency even though Tiffany did not travel directly between consumers.

About Littler

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

Angelo Spinola is a Shareholder with Littler Mendelson P.C., and is a lead attorney for the Home Care Practice Group. He represents home care employers across the country in various types of actions brought under the Fair Labor Standards Act and various state wage and hour laws. Appearing on behalf of employers in federal and state courts and administrative tribunals throughout the U.S., Angelo has litigated all types of discrimination cases, including age, disability, race, national origin, sex, harassment and retaliation. Angelo’s experience also includes helping employers respond to wage and hour investigations by the Department of Labor and state agency equivalents, conducting wage and hour practices audits, developing compliance measures that minimize wage and hour exposure, and representing management in grievance arbitrations. Additionally, Angelo assists employers with promoting an issue-free work environment through counseling, training and other preventive strategies. He also conducts training on employment-related issues for management personnel, lawyers and human resources professionals. Angelo received a J.D. from George Washington University Law School.

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