February 2021 Private Duty Data Point, part 2: Office Staff Benefits

Office Staff Benefits – While business owners are rightly wary of paying too much, paying office staff a little more is typically an investment that pays itself back through returns across multiple channels: better client experiences, faster agency growth, smoother operations, lower caregiver turnover, and better sleep for you. Extra cash can be hard to come by in a home care agency, especially in the age of COVID, but the bottom line is clear: paying your staff enough to retain them is worth the investment.

Continue reading “February 2021 Private Duty Data Point, part 2: Office Staff Benefits”

State Issue Alert: Maryland Labor and Employment Standards During an Emergency

Our partner Littler Mendelson Law firm reached out to NAHC and other members of a standing home care coalition to let us know of a new issue that has been raised in the state of Maryland by some of their clients. NAHC is actively working in conjunction with the Maryland National Capital Home Care Association (MNCHA) on this issue.

Since the emergence of COVID-19 last year, a handful of states have moved to impose requirements on employers of essential workers outside of and often exceeding their normal business practices. We understand that the states of California and Virginia have already done so via a regulatory process. Maryland legislators are now considering similar proposals through legislation (HB 581 and SB 486).

Maryland bills HB 581 and its companion SB 486 would impose new requirements on Maryland employers during established emergency periods and employ “essential workers.” While geared to protect employees, this legislation may cause undue hardship and added costs to employers.

NAHC will continue to work in partnership with MNCHA on this issue and keep you informed of any new developments.

February 2021 Private Duty Data Point: Office Staff Turnover & Revenue Changes

Office Staff Turnover – Any business owner recognizes that with their leadership team fully engaged and each individually doing their best to help the team move in the right direction, every part of the business is going to go more smoothly. Clients will receive better care, caregivers will enjoy their jobs more, the owner’s life will be easier, and the business will grow more quickly.

Related Resource – How to Help Your Home Care Office Staff All Row in the Same Direction

Littler “Ask the Experts”: Payroll Audit Independent Determination Program

Through 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 our private duty home care advisory board members and concerns the recent announcement about the Department of Labor’s PAID program.

Question: What does it mean that the U.S. Department of Labor (DOL) has ended its Payroll Audit Independent Determination (PAID) program last Friday (January 29, 2021)?

Answer by Will Vail of Littler Mendelson

The PAID program began in March 2018 and allowed employers an alternative method to rectify overtime and minimum wage violations of the federal Fair Labor Standards Act (FLSA) without the worry of an extended statute of limitations, penalties, and threat of private litigation or attorneys’ fees.  The Wage Hour Division repeatedly touted the program’s success (the most recent numbers – from this past summer – show that it collected more than $7 Million in wages for 11,000 workers).  In its press release announcing the end of the program, however, the DOL indicated that the resources and outreach provided by the Wage and Hour Division to employers are sufficient to help employers comply with the FLSA “without relieving them of their legal obligations.”

Under the PAID program, employers were able to self-report a wage violation, submit a calculation of back wages to the DOL, and enter into an agreement to pay 100% of back wages owed over a two-year period. In turn, the DOL would supervise and approve the settlement permitting employees to issue a valid release of the claim, limited to the reported issue. The DOL agreed not to seek a third year of back wages, liquidated damages, or civil money penalties, and kept the identity of reporting employers confidential, subject to FOIA requests. As an additional incentive for employers to participate in the PAID program, the DOL agreed not to investigate the underlying merits of the issue that the employer self-reported; instead, its review was limited to the back wage calculations prepared by the employer for accuracy.

Without the self-reporting PAID program, the only two options available to release FLSA claims are through a court-approved settlement or as a result of a DOL-initiated investigation.  The PAID program did not release any state law claims, which was why some employers did not avail themselves of it, but the program did allow for significant relief for employers to correct issues without the threat of additional litigation or negative publicity.

Even without the added benefits of the PAID program, employers should continue to be proactive to audit pay records and correct potential wage issues if identified.  This is particularly true for the at-home care industry (home health, hospice and home care).  Even under the previous administration, there was substantial litigation against companies in this industry.

Big picture, this likely is an example of the new administration’s stance on employment matters generally.  It is likely going to take a stricter enforcement posture with companies.  Indeed, the new administration has already added more than a dozen new political appointees to the DOL, including in the Solicitor’s office (the part of the DOL that litigates against employers).

Do you have a question for our experts at Littler?

As part of our commitment to you as our members we want to make sure to support you with the information and leadership expertise you need to provide quality private duty home care and services.

If you have a question for our experts at Littler, please feel free to send your question to erb@nahc.org and we will work to get your question answered as quickly as possible and then featured in an upcoming Ask the Experts section of the Private Duty Source.

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.

About Will Vail, Special Council

William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations.

Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns.

William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta.

*Not licensed to practice law in Georgia

Critical New Webinar: Covid Vaccine and Your Workforce

Tune into a one-hour webinar featuring top experts in home care on the current trends and state of navigating the COVID-19 vaccine with your caregiver employees.

The webinar will air live on Tuesday, February 2, 2021 from 1:00PM Eastern Time (12:00PM CT) and will last for 60 minutes.

The webinar is complimentary, but open only to the first 1000 registrants.

REGISTER NOW

Want to know if you should mandate vaccine, how to track it, how other agencies are navigating various State requirements, and how to message your team to both stay compliant and inspire caregivers to get the shot? Join us for a powerful session to explore the latest trends and to get answers from Littler home care labor attorney, Angelo Spinola.

Speakers:

Angelo Spinola
Shareholder | Littler

Brandi Kurtyka
Chief Executive Officer | myCNAjobs

Questions can be submitted prior and a minimum of 30-minutes will be dedicated to live Q&A.  

Can’t make it? Register for a recording to be distributed the day after the webinar.

Labor Dept. Issues Stronger Workplace Guidance on Coronavirus

  • New OSHA guidance seeks to mitigate, prevent viral spread in the workplace

The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.

Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” provides updated guidance and recommendations, and outlines existing safety and health standards. OSHA is providing the recommendations to assist employers in providing a safe and healthful workplace.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

Implementing a coronavirus protection program is the most effective way to reduce the spread of the virus. The guidance announced today recommends several essential elements in a prevention program:

  • Conduct a hazard assessment.
  • Identify control measures to limit the spread of the virus.
  • Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home.
  • Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.
  • Implement protections from retaliation for workers who raise coronavirus-related concerns.

“OSHA is updating its guidance to reduce the risk of transmission of the coronavirus and improve worker protections so businesses can operate safely and employees can stay safe and working,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Jim Frederick.

The guidance details key measures for limiting coronavirus’s spread, including ensuring infected or potentially infected people are not in the workplace, implementing and following physical distancing protocols and using surgical masks or cloth face coverings. It also provides guidance on use of personal protective equipment, improving ventilation, good hygiene and routine cleaning.

OSHA will update today’s guidance as developments in science, best practices and standards warrant.

This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. Learn more about OSHA.

Labor Dept. Issues Stronger Workplace Guidance on Coronavirus

New OSHA guidance seeks to mitigate, prevent viral spread in the workplace The U.S. Department of Labor announced today that its Occupational Safety and Health Administration has issued stronger worker safety guidance to help employers and workers implement a coronavirus protection program and better identify risks which could lead to exposure and contraction. Last week,…

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.