The Department of Labor’s Wage and Hour Division (WHD) has released its final rule extending minimum wage and overtime protections under the Fair Labor Standards Act (FLSA) to home care workers. Under the final rule, effective on January 1, 2015, third party employers such as home care staffing agencies are not entitled to claim either the FLSA’s companionship services or live-in domestic service employee exemptions. According to the WHD, the changes to current regulations will apply the FLSA’s requirements to nearly two million direct care workers, including home health aides, personal care aides and certified nursing assistants.

As discussed in a set of frequently asked questions, the final rule defines “companionship services" as the provision of fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself. These services include provision of care “if the care is provided attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20 percent of the total hours worked per person and per workweek.” According to the DOL, the final rule makes two significant changes: (1) the tasks that comprise exempt "companionship services" are more narrowly defined; and (2) the exemptions for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services rather than third party employers such as home health care agencies.

Direct care workers who provide “medically-related services for which training is typically a prerequisite” are not considered companionship workers under the rule, and are therefore not entitled to the companionship exemption, although they may be eligible for other exemptions. By contrast, individual workers who are hired by the person receiving care or by that person’s family or household, and who are engaged “primarily in fellowship and protection” and care incidental to such activities, will still be exempt from the overtime and minimum wage requirements under the companionship exemption.

A more detailed discussion of the new rule and its implications is forthcoming. In the interim, the WHD has provided a number of informational materials, including fact sheets and FAQs, on its new home care web portal.