By now many in the home care industry have heard about recent California and Federal laws which may drastically impact how home care companies operate.
This is the first of two articles. Article 1 summarizes some significant changes. Article 2 provides some possible alternative contractual/care arrangement for home care companies, their employees and the care recipients to consider.
First, what changed?
A. ASSEMBLY BILL 241
Recently, the California Legislature passed AB 241, known as the Domestic Worker Bill of Rights (“DWBR”). There are many components to DWBR and you should consult with an attorney about how the law affects you, but the following is one of the major changes made by this law.
How will AB 241 impact Home Care Agencies?
AB 241 will go into effect on January 1, 2014, and will be codified in the Labor Code beginning with section 1450.
The new bill changes the overtime requirements for domestic workers as follows: “’A domestic worker who is a personal attendant shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the work week.”
AB 241 requires home care agencies to pay a domestic worker who is a personal attendant overtime (at the rate of one-half times the employee’s regular rate of pay) for all hours worked over nine hours in any one day or for all hours worked over 45 hours in the work week.
B. ASSEMBLY BILL 1217
A second significant bit of legislation was also implemented recently: AB 1217 or the Home Care Services Consumer Protection Act.
How will AB 1217 impact Home Care Agencies?
AB 1217 will go into effect on January 1, 2016 (with some implementation of requirements by July 1, 2016) and will be codified in the Healthy and Safe Code beginning with Health and Safety Code section 1796.10 et seq.
Among other things this bill provides, for the licensure and regulation of home care organizations and the registration of home care aides with the Home Care Aide Registry.
A “Home Care Aide Registry” is defined as, “a department-established and department-maintained Internet Web site of registered home care aides and home care aide applicants, which includes all of the following: the individual’s name, registration number, registration status, registration expiration date, and, if applicable, the home care organization to which the affiliated home care aide or affiliated home care aid applicant is associated.” (Health and Safety Code § 1796.12(i))
The bill requires that all individuals who provide home care services must be listed in the Home Care Aide Registry. The individual must submit an application to the Department of Social Services who maintains the registry and determine whether applicant meets the criteria required and will be listed on the registry. The home care aide must be listed on the Home Care Aide Registry prior to providing home care services to a client.
More importantly, the bill imposes various licensure requirements on a home care organization.
A “Home Care Organization” is defined as, “an individual, 18 years of age or older, firm, partnership, corporation, limited liability company, joint venture, association, or other entity that arranges for home care services by an affiliated home care aide to a client, and is licensed pursuant to this chapter.” (Health and Safety Code § 1796.12(j))
In order to obtain a license, the home care organization must submit the following:
1. An application;
2. Provide general and professional liability insurance of at least one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate;
3. Provide proof of valid workers’ compensation policy covering its affiliated home care aides;
4. Provide the Department of Social Services with a complete list of its affiliated home care aides, and proof that each aide has satisfied the requirements of Health and Safety Code section 1796.43;
5. The owner or owners of the home care organization must pass a background check;
6. The applicant does not have any outstanding fees or civil penalties due to the department.
A home care organization must renew their license every two years.
Additionally, home care organizations will be required to comply with the following:
1. Post its license and business hours in its place of business, which must be visible to affiliated home care aides and clients;
2. Maintain and abide by a valid workers’ compensation policy covering its affiliated home care aides;
3. Maintain and abide by an employee dishonesty bond, including third-party coverage, with a minimum limit of ten thousand dollars ($10,000);
4. Report any suspected or known adult and/or child abuse.
Home care organizations must also ensure that affiliated home care aides are cleared on the home care aide registry before placing the individuals in direct contact with clients.
Additionally, they must ensure that any staff person, volunteer or employee of the home care organization does not pose a risk to the clients’ healthy and safety and are free of active tuberculosis disease. When an affiliated home care aide no longer is working with a home care organization, the home care organization must immediately notify the Department of Social Services. Further, home care organizations must ensure that all affiliated home care aides complete the training requirements specified in Health and Safety Code section 1796.44.
Some agencies are exempt from licensure, for example: employment agencies would not be required to obtain a license as long as they are not the employer of the home care aid or other worker.
This bill, in addition, prescribes enforcement procedures, fines, and penalties for violations of the act by a home care organization or a home care aide and violations of specified requirements by an employment agency, as defined.
AB 1217 will drastically impact home care aides and home care organizations by imposing additional registration and licensure requirements, both of which require time and money to comply with. Additionally, the home care organization is burdened with complying with tuberculosis testing, training requirements, and ensuring an affiliated home care aide is cleared with the home care aide registry before they can be placed with a client.
However, home care aides and home care organizations that do not comply with these requirements are subject to criminal and civil penalties and fines.
C. FEDERAL FAIR LABOR AND STANDARDS ACT
Finally, the Federal Government has weighed in and passed a significant change to the Fair Labor Standards Act. (29 U.S. C. § 201 et seq.)
How will new revisions to the Federal Fair Labor and Standards Act impact Home Care Agencies?
Amendments to the Fair Labor Standards Act (FSLA) regarding domestic services will take effect on January 1, 2015.
This new amendment narrowly redefines “companionship services” and the tasks that used to qualify under that exemption. Also, the exemptions for companionship services and live-in domestic service employees now may only be claimed by the individual, family, or household using the services rather than a third party, such as a home health care agency. Additionally, the amendment revises the recordkeeping requirements for employers of live-in domestic service employees.
Under the new provisions of FSLA, companionship services are defined as, “the provision of fellowship and protection for an elderly person or a person with an illness, injury, or disability who requires assistance in caring for him or herself.”
Third party employers, such as home care agencies, are no longer allowed to claim the companionship exemption and all employees must be paid minimum wage and overtime for any hours worked in excess of 40 hours a week. Additionally, all domestic workers are required to be paid for meal and rest periods unless the employee is completely relieved from duty.
Live-In workers must reside at the home permanently or for an extended period of time, which is defined as 5 days per week. For shifts that last 24 hours, sleep time may be excluded from hours worked as long as the employee gets 5 consecutive hours of uninterrupted sleep, and proper sleeping facilities must be provided.
A live-in employee must be paid for all hours worked. A flat daily rate may be paid; however, the rate must take into consideration the required sleep time provisions.
Additionally, employers of live-in domestic workers must keep accurate records of hours worked. However, the employer may assign a live-in domestic employee the task of recording his/her hours and submitting them to the employer.
As a result of the amendments to the FSLA, home care agencies can no longer claim the companionship exemption and therefore, must pay their employees minimum wage and overtime for every hour worked in excess of 40 per week. Additionally, home care agencies must keep accurate records of hours worked for live-in domestic workers.
DISCLAIMER: This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Offices of Ron A. Stormoen by a signed written retainer agreement.