Home Health & Hospice Week

Keep general household work under the exemption threshold.

Home health agencies can feel better than ever about using the companionship exemption to the Fair Labor Standards Act, now that the U.S. Supreme Court has sided with the industry on the matter.

Section 13(a)(15) of FLSA exempts "any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves," the Department of Labor Wage and Hour Division says in an advisory memo released Dec. 1. "The statute does not draw any distinction between companions who are employed by the owners of the homes in which they are working and companions who are instead employed by third party employers."

That means home care providers don't have to pay exempt employees minimum wage or overtime, explains labor law attorney John Gilliland II with Gilliland Markette Milligan in Indianapolis. FLSA sets overtime pay at 1.5 times the regular pay rate for hours worked over 40 per week.

The DOL is continuing to apply the companionship exemption in states outside of the jurisdiction of the Second Circuit--Connecticut, New York and Vermont, the memo confirms.

Now that the Supreme Court has vacated the 2nd U.S. Circuit Court of Appeals decision invalidating the exemption for third-party employers, agencies don't need to adhere to it, Gilliland tells Eli. The decision "no longer exists," he notes.

Beware: However, 2nd Circuit agencies may not be quite home free. "The litigation will continue," Gilliland points out. "Agencies in the 2nd Circuit should consult with their attorneys concerning the best course of action to take in light of their own circumstances."

Agencies in other jurisdictions should make sure they have met the requirements of the exemption and keep an eye on the situation to make sure the Appeals Court rules in favor of the exemption as expected, Gilliland advises. Although court timetables are hard to predict, Gilliland doesn't expect to see the decision for at least a few months.

To qualify for the companionship exemption agencies must meet these requirements:

1. Fit the definition. The services furnished by the aide must constitute companionship services, Gilliland explains in an article about the exemption. Regulations define those as "services which provide fellowship, care and protection for a person who because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services."

Particularly important is making sure the employee performs the services for the client and not for other household members, Gilliland instructs.

2. Keep household work to 20 percent. Even though companionship services are tied to the client, they also may include general household work, notes attorney Claudia Schlosberg with Blank Rome in Washington, DC. But the household tasks must not exceed 20 percent of the total weekly hours worked by the companion, Schlosberg stresses in an article about the Coke lawsuit.

3. Don't count trained nurses. If the employee's duties require the training of a registered nurse or licensed practical nurse, the exemption doesn't apply, Gilliland notes. Non-nursing training for aides, attendants, etc. is OK, he says.

"The execution of duties by [aides] that may also be performed by trained nurses does not present a problem, so long as the law does not require that these services be performed by trained personnel," Schlos-berg clarifies.

4. Home is where the exemption is. "For the exemption to apply, the services must be provided in or about the private home of the person," Gilliland counsels. "The companionship services exemption is not available where the client is residing in a hospital, nursing home, group home, or other institutional type facility." Assisted living facilities are out too, he adds.

Tip: The burden is on you to prove the exemption applies, Gilliland remind providers. That means figuring out, for example, how you will prove that attendants keep general household chores to 20 percent of their time worked.

Pitfall: Make sure your state law allows you to use the federal companionship exemption. And you need to tailor your practices to the facts of your own situation, Gilliland cautions.

"What is the best thing for one agency in one state may be different for another agency in another state," Gilliland advises. It depends "on things such as state law and the agency's degree of compliance with the requirements of the companionship services exemption." Seek legal counsel from an attorney knowledgeable with the labor laws pertaining to your area and the facts of your situation.