The Department of Labor (DOL) announced its final rule regarding protections for home health care workers under the Fair Labor Standards Act (FLSA) on September 17, 2013. This rule drastically changes the way direct care workers, such as home health aides, personal care aides and certified nursing assistants, must be compensated. Effective January 1, 2015, third-party employers (such as home health care agencies) may not claim the FLSA’s companionship services or live-in domestic service employee exemptions. Direct care workers employed by third-party employers will be entitled to both minimum wage and overtime compensation.

The final rule does allow individuals and families that directly employ a worker to utilize the companionship services or live-in domestic service exemptions; provided, the worker is providing fellowship and protection to an elderly or infirm person who requires assistance in caring for himself or herself. The worker may still provide direct medical care to the individual without destroying the exemption, but such care must be incidental and constitute less than 20 percent of the total hours worked per workweek.

For more information about the recent DOL regulation changes, please contact our Labor and Employment Law practice group.

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