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.


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.


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.

Writing off Expenses Paid for with PPP Money & a New DoL Decision

By Littler Mendelson

The Consolidated Appropriations Act of 2021 contains an important aspect of that legislation that many of you have been clamoring for: companies now may write off expenses paid for with PPP money.  This change was buried in section 276(a) of the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venues Act (which is part of the stimulus bill). As you likely know, the Internal Revenue Service (IRS) refused to adopt this position absent express language to this effect in the statute. There was bipartisan support for this new language, but it never seemed to make it into any of the draft stimulus bills. Further cementing this victory, the IRS has announced that an official change in its position on this issue.  We know this is a welcome, albeit belated, result.

Also in the news and relevant to this industry is the DOL’s recent action taken to finalize the independent contractor rule.  This rule impacts traditional registries and the online virtual marketplace platforms that facilitate caregiving services as it provides a new paradigm for analyzing whether a caregiver is truly an independent contractor or employee (focusing on two key factors – control and opportunity for profit or loss – instead of weighing seven factors).  The rule is supposed to go into effect March 8, 2021, but President Joseph Biden has announced his intent to issue a memorandum on his first day in office freezing the effective date of any legislation that is not yet in effect. He also has expressed an interest in derailing the rule entirely. If the rule were to become effective, the biggest question would be its impact on the Field Assistance Bulletin No. 2018-4, which provided guidance on when registries are employers under federal wage and hour law. This is because the new rule would replace any inconsistent previous interpretation of independent contractor status.  So stay tuned for more developments on this front!

Home Care COVID Legal Update

Friday, January 22, 2021 Event is free! REGISTER NOW! 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?…

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 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!

NAHC Webinar: Home Care Industry Update: Year in Review and 2021 Projections

The National Association for Home Care & Hospice (NAHC) and the law firm Littler Mendelson will present a new webinar, Home Care Industry Update: Year in Review and 2021 Projections, on Tuesday, December 15, 2020 from 2:00-4:00 PM Eastern. If you cannot attend in person, you can register for the free recording of the event. The National…

Two Key Dates to Put On Your Calendar: 2021 Look Ahead Webinar & Winter Leadership Meeting

Private Duty Home Care at NAHC has two criticald dates we want you to keep on your calendar. One is the Winter Leadership Summit in February and the other is closer, the Year in Review webinar coming up next week!


NAHC and the law firm Littler Mendelson will present a new webinar, Home Care Industry Update: Year in Review and 2021 Projections, on Tuesday, December 15, 2020 from 2:00-4:00 PM Eastern. If you cannot attend in person, you can register for the free recording of the event.

NAHC and Littler have partnered with the goal of assisting home health, hospice, and private duty home care providers in navigating the complex and ever-changing legal landscape. In this webinar, Angelo Spinola, a leading attorney for the industry, will present a high-level overview of major legal developments that have occurred throughout 2020.

This webinar is free to all but registration is required.


During this event, he will provide a breakdown of the latest legislative changes concerning the COVID-19 response and the projected impact on the home care and home health industries after the presidential election outcome. Angelo will analyze the industry-specific employment practices projected to result in new lawsuits and outline the critical strategies and tools providers should leverage to reinforce compliance.


  • Angelo Spinola, Shareholder, Co-Chair, Home Health and Home Care Industry Group, Littler
  • William Vail, Special Counsel, Littler
  • William A. Dombi, Esq. President, NAHC

Registration Fees
(Includes both the live event and recording)


Private Duty Home Care at NAHC is asking you to save the date of February 23, 2021 for the first annual Winter Leadership Summit, a virtual meeting focused on Leadership, Education, Advocacy, and Innovation.

It is our commitment to empower you and your organization, through education,  to consistently deliver the highest quality services, setting the standard for excellence in practice today and for the future. 

This inaugural, one-day education event is focused on our core service offerings with content curated and cultivated specifically by and for the private duty home care community.

With insight and advice from the most trusted and experienced experts in home care, the Winter Leadership Summit will be a must-attend event, featuring critical content you cannot get anywhere else.

Registration opens soon and more details are coming, so stay tuned to the Private Duty Source and other NAHC communication for more information.

We look forward to seeing you on February 23, 2021!


NAHC Webinar: Home Care Industry Legislative Update

The National Association for Home Care & Hospice (NAHC) and Private Duty Home Care at NAHC will present a new webinar in the Home Care Industry Legisalative Update webinar series on Wednesday, November 11, 2020 from 12:00Noon to 2:00PM Eastern. This event is free to NAHC members and non-members, but registration is required. REGISTER NOW!…

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,…

NAHC Webinar: Home Care Industry Update

RESERVE YOUR SPOT NAHC has partnered with Littler Mendelson, the Home Care Association of America (HCAOA), and the Private Duty Homecare Association (PDHCA) to provide a webinar series to assist home health and home care providers to navigate through the complex and seemingly ever-changing legal landscape brought about by the COVID-19 pandemic. The latest webinar…