Home Health & Hospice Week

But stay tuned, since that may change quickly.

Thanks to a victory in a trade group lawsuit against the new overtime and minimum wage rule for companionship services, home health agencies can hold off paying workers more. But that may not be the case for much longer, depending on how a federal court ultimately rules.

Background: The Department of Labor finalized elimination of the exemption in 2013 (see Eli’s HCW, Vol. XXII, No. 33) and set an implementation date of Jan. 1, 2015. After much outcry, the DOL announced last fall that "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 "even though DOJ delayed enforcement, agencies can still be sued in a private lawsuit because the effective date of the rule remains Jan. 1, 2015," points out labor law attorney John Gilliland with The Gilliland Law Firm in Indianapolis.

So, the National Association for Home Care & Hospice filed a lawsuit challenging elimination of the exemption, and the week of Christmas the judge ruled that DOL’s regulations, "which excluded the application of the ‘companionship services’ and ‘live-in domestic services’ exemptions under the Fair Labor Standards Act to third-party employers, i.e. home care companies, were invalid," NAHC notes.

However: The court has not yet ruled on the changes to the definition of companionship services. Under the new definition the DOL set out, the only workers that would fall under the companionship services exemption would be those that predominately provide ‘fellowship’ services with no more than 20 percent of work activities involving personal care or housekeeping tasks, NAHC notes.

Breather: On Dec. 31 NAHC did win a temporary re-straining order that delays enforcement of the definition change, the trade group reports. While the TRO can only last two weeks, the judge has indicated he will rule on granting a longer preliminary injunction by then, according to NAHC.

What should agencies do now? "During the time in which the TRO is in effect, home care companies can continue to pay home care aides and personal care attendants without added overtime compensation except where state law requires it," NAHC counsels.