Home Health & Hospice Week

DOL puts off enforcement 6 months.

Elimination of the companionship exemption to minimum wage and overtime laws for home health aides is a big headache for home health agencies, and a new delay announced by the Depart-ment of Labor isn’t much of a pain reliever.

Background: The DOJ finalized the ex-emption last year (see Eli’s HCW, Vol. 22, No. 33) and set an implementation date of Jan. 1, 2015. Since then, agencies and their representatives on Capitol Hill have been lobbying Labor to nix the elimination.

Now the DOL hasn’t acquiesced to those entreaties entirely, but it has given a six-month reprieve on enforcement of the change.

But wait: The implementation date of the final rule requiring the change remains Jan. 1, the DOL says on its website. But “the department also announced a time-limited, non-enforcement policy with respect to the requirements under the rule,” it says. “For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance.”

But don’t dump your plans for Jan. 1 compliance just yet. “The policy action restricts enforcement of the overtime rule by the Department of Labor,” points out William Dombi with the Nation-al Association for Home Care & Hospice. “How-ever, the action does not restrict private enforcement. This makes the delay nearly inconsequential as most enforcement is by private litigants. State Medicaid programs along with private home care companies remain at risk,” Dombi says in a message to NAHC members.

The move has left groups on both sides of the issue dissatisfied.

Worker advocates criticize the delay. “The decision to delay means that 2 million home care workers — largely low-income women, and disproportionately women of color — will have to wait as long as another 12 months to receive even the most basic labor protections, guarantees that most other American workers take for granted,” Paraprofes-sional Healthcare Institute’s Jodi Sturgeon says in a statement.

Representatives of HHAs and states maintain that the exemption elimination needs to be scuttled altogether. “The fact that the department plans to ignore its own rule after it goes into effect should be proof enough that it should be scrapped altogether,” said Sen. Lamar Alexander (R-Tenn.), according to press reports.