The Obama Administration announced this week that home health aides and other direct care workers are entitled to protections under federal labor laws, including the right to both the minimum wage and overtime pay.
The new rules, under the Fair Labor Standards Act (FLSA) won’t take effect until 2015. But they should be a significant benefit to many direct care workers, who often work long hours at low pay. But what will they mean for those receiving personal assistance and their families?
Who is covered by the new rules? Mostly, home care workers who are employed by home health agencies and other third parties. In general, if you hire an aide directly, she will not be covered by the new rules.
Are all home care workers going to be covered? No. If the worker provides only companionship services, such as keeping a client company or accompanying him on errands or appointments, she will not be covered by the new rules. However, the new regulations will tighten this companionship exemption.
How? If an aide provides assistance with activities of daily living (ADLs), such as dressing, transferring, or toileting, or if she assists with other personal care services such as cooking, driving, or housework (sometimes call Instrumental Activities of Daily Living or IADLs), she will be covered. If she provides mostly companionship but helps with ADLs or IADLs for 20 percent of her time—say, 7 of 35 hours per week– she will be covered by the new rules for her full week of work. Aides will also be compensated for travel time when they go from one client home to another.
What about live-in aides? If you hire them directly, live-in aides do not have to be paid overtime but must be paid the minimum wage. If you hire them through an agency, they are entitled to both the minimum wage and time-and-a-half overtime pay.
How about aides who provide medical services? They must be paid the minimum wage and overtime if they provide services such as changing dressings.
Will all aides subject to the new rules get a raise? Many are already paid more than the $7.25/hr. minimum wage. The average wage for a home care worker is about $9.00/hr. Fifteen states already require minimum wage and overtime for direct care workers and 6 others mandate the minimum wage. However, the rules vary from state-to-state. My guess is the overtime protections will turn out to be most important.
Won’t home care agencies avoid the added overtime costs by limiting aides to part-time work? Some may. But many aides already work only part-time. In addition, where there are shortages of direct care workers, agencies may have to give aides full-time work in order to hire or retain the best workers.
You said I won’t have to pay minimum wage if I hire an aide directly, so does that mean these new rules won’t affect me at all? It isn’t that simple. In many states with shortages of qualified aides, families hiring directly may have to pay more to compete with agencies. On the other hand, new labor protections may encourage more people to become aides which could keep costs down.
What about gray market aides? While few want to talk about it, many aides work for cash, pay no taxes, and avoid many of the rules that govern those who work on the books. By making wage and hour protections available for the first time, the government may encourage some of these gray market workers to play by the rules. That would protect both them and their clients. Others, however, may still feel it is a better deal to work tax-free and give up worker protections.
Won’t these new rules increase an already-unsustainable long-term care burden on families and the nation? They will certainly add direct costs. That is the flip side of paying aides a decent wage. But doing this is not only right, it is necessary if we are going to have enough direct care workers to care for an aging baby boom population. Besides, paying a few extra dollars for a capable aide might be cost-effective if it prevents an emergency room visit or a hospitalization.
For more details, take a look at the FAQ page on the Labor department website.