FLSA would cover home health care workers ? Business ...

Under proposed regulations, staffing agencies that send health care workers into clients? homes would be fully covered under the Fair Labor Standards Act (FLSA). In-home health care workers who are employed by families would retain their FLSA exemption. The regs would also entitle live-in domestic workers employed by third parties to overtime, and change the record-keeping requirements for those employees to align them with the FLSA?s general requirements.

These proposed regs won?t become effective until final regs are issued. (76 F.R. 81190, 12-27-11)

Who?s watching grandma?

Companions for the aged and infirm are excluded from the FLSA. Although in-home workers employed by families would retain their FLSA exemption under these regs, ?workers employed by third-party employers, such as health care staffing agencies, would be covered by the FLSA. That would be true even if the workers are jointly employed by the third party and a family.

The regs also make these clarifications:

• Domestic workers would include home health aides, personal care aides and nannies.
• Excluded companionship services would be limited to duties that are directly related to the fellowship and protection of individuals who, because of advanced age or infirmity, can?t care for themselves?playing cards, watching television, visiting with friends and neighbors, taking walks or engaging in hobbies.
• Personal care services?occasional dressing, grooming and driving to appointments?could be performed, provided those services don?t exceed 20% of employees? working time and are incidental to the core function of companionship.
• Excluded companionship services wouldn?t cover an employee who performs general household work and medically related tasks for which training is typically required.

Finally, live-in domestic workers employed by third parties would be entitled to overtime. Families would continue to be exempt from the FLSA?s overtime provision. Third-party employers would be required to keep accurate records of employees? working time.

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