The court in Home Care Association of America v. Weil dealt another setback to the U.S. Department of Labor’s (DOL) amendments to the Fair Labor Standards Act’s (FLSA) regulations affecting home health care businesses. On December 31, 2014, the court issued an order temporarily staying the DOL’s new regulation narrowing the definition of “companionship services.” The order stops that regulation from going into effect until January 15, 2015. In the meantime, on January 9, 2015, the court will hear argument on whether the stay should be continued beyond January 15, 2015.
This recent stay order follows the court’s December 22 order vacating the new DOL regulation’s extension of federal minimum wage and overtime requirements to home care workers.
Before the new regulation, “companionship services” was defined as “services which provide fellowship, care, and protection” for a person who, because of age or disability, cannot care for his or her own needs. “Companionship services” could also include general household work, provided that it does not exceed 20 percent of the caregiver’s total weekly hours worked. The amended definition of “companionship services” narrowed the previous definition, primarily by eliminating the allowance for general household work and limiting the amount of time devoted to assisting the person with activities of daily living.
The upshot of these recent decisions: (1) third-party employers can still avail themselves of the FLSA companionship and live-in exemptions, and (2) the pre-amendment definition of companionship services applies to determine whether the exemption is available. Whether these rules will remain in place in the long run is highly uncertain. Also, no matter the outcome on these federal regulations, home health care businesses must also comply with state laws, which may require the payment of overtime, even if federal law does not.
Robert R. Roginson is a shareholder in the Los Angeles office of Ogletree Deakins.