On January 14, 2015, the court in Home Care Association of America v. Weil vacated the U.S. Department of Labor’s (DOL) regulation narrowing the definition of “companionship services” under the Fair Labor Standards Act (FLSA). In doing so, the court reinstated the status quo for home health care businesses on the question of whether and how they can avail themselves of the FLSA’s minimum wage and overtime exemption for caregivers. Though home health care businesses are breathing a sigh of relief, it remains to be seen whether the DOL will appeal the court’s rulings and, if so, the outcome of that appeal.
For now, the FLSA companionship and live-in exemptions continue to be available to third-party employers, and the definition of “companionship services” is currently the pre-amendment definition. Under the pre-amendment definition, an employee will be considered a companion under the FLSA if the employee provides fellowship, care, and protection for the elderly or disabled client and spends no more than 20 percent of his or her time doing general housework. The performance of “care” services for the elderly or disabled client such as meal preparation, bed making, washing of clothes, and similar services is unlimited. Note that, even though the DOL’s regulation amendments have been vacated, home health care businesses must ensure they comply with state laws, which may require the payment of overtime, even if federal law does not.