Employers in the home
healthcare industry will be getting a brief delay in the enforcement of new
regulations extending minimum wage and overtime requirements to home healthcare
workers under the Fair Labor Standards Act (“FLSA”).
The U.S.
Department of Labor’s (“DOL”) final rule is scheduled to take effect January 1,
2015, but on October 7, 2014, the DOL announced it would delay enforcement and the
imposition of penalties for a period of six months, or until June 30, 2015. For the following six months, or until
December 31, 2015, the DOL will exercise its discretion in determining whether
to bring enforcement actions, based on the extent to which employers have made “good
faith efforts to bring their home care programs into FLSA compliance.”
It is important for employers to remember that despite the DOL's enforcement delay, they are still required to begin complying with the new rule as of January 1, 2015.
It is important for employers to remember that despite the DOL's enforcement delay, they are still required to begin complying with the new rule as of January 1, 2015.
Up until the new rule, the FLSA contained an exemption that
employees providing “companionship services” to elderly persons or individuals
with illnesses, injuries, or disabilities were not required to be paid the
minimum wage or overtime pay if they met certain regulatory requirements.
This change will result in nearly two million direct care
workers, such as home health aides, personal care aides and certified nursing
assistants falling under the requirements of the FLSA. Business groups and Congressional Republicans
had strongly pushed for a complete suspension of the new rule, expressing fears
that it would make home healthcare unaffordable and result in disruption to
patient care. In explaining its reason
for the additional delay in active implementation, the DOL noted:
When
we announced the final rule, we provided a 15-month implementation period
before its effective date. We did so out of recognition that home care services
financing is complex, and that making adjustments to operations, programs and
budgets in order to comply with the rule would take time. Some states, tell us
that they’re ready to implement the rule. Others, because of budget and
legislative processes, have requested an extension. After careful consideration, the department
decided to adopt a time-limited non-enforcement policy. This approach will best
serve the goals of rewarding hard work with a fair wage while not disrupting
innovative direct care services.
For employers seeking more detailed information on the changes
to the FLSA under the final rule, the DOL is providing an on-line fact sheet.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in
Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To
view his firm bio,
click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com
