What Do You Legally Have to Pay a Caregiver for Your Mom?

Could you be breaking the law?  You may be required to pay minimum wage or provide overtime pay for persons you hire to take care of your aging parent.

We first discussed the changes to the Department of Labor’s overtime rules in our Firm’s Facebook post on May 20.  Here’s a little more information provided by ElderLawAnswers.

The federal government recently extended minimum wage and overtime protections to most home health care workers. If you are hiring a caregiver for yourself or an elderly loved one, you need to become familiar with the rules, even if the paid caregiver is a family member.

Under the Fair Labor Standards Act (FLSA), employers who hire casual babysitters and domestic service workers to provide “companionship services” to elderly persons or persons with illnesses, injuries, or disabilities are not required to pay the minimum wage or provide overtime pay. Therefore, if you directly hire a caregiver whose job it is to solely keep the elderly person company (for example, taking the client for walks, playing games with the client, reading, or accompanying the client on errands), then FLSA protections do not apply.

However, the companionship services exemption is not applicable when the caregiver spends more than 20 percent of his or her workweek performing “care services.” Care services are defined as assisting the client with activities of daily living, including dressing, feeding, bathing, toileting, transportation, light housework, managing finances, taking medication, and arranging medical care. Caregivers who perform tasks for the entire household and caregivers who perform medical services are also not covered under the companionship exemption. In addition, if a home health care agency is the caregiver’s employer, the home health care agency cannot ever claim the companionship exemption.

The rules for live-in caregivers are slightly different. If you hire the live-in caregiver directly, you must pay the caregiver minimum wage, but you are not required to pay overtime. Third-party employers (such as health care agencies) that hire live-in workers are required to pay overtime. Under the FLSA, to be a “live-in” home care worker, the worker must either live at the client’s home full-time or spend at least 120 hours or five consecutive days or nights in the client’s home per week. Caregivers who live with clients are not necessarily working the entire time they are at the house, and employers do not need to pay for sleep time, mealtime, or other off-duty time.

You can hire family members as care workers and the same rules apply to them as to non-family care providers. If you hire family members, you must pay them overtime and minimum wage as long as they are spending more than 20 percent of their time on care services. However, it is very important to have a written plan of care detailing the family member’s working hours and obligations, so it is clear what is work time and what is family time.

The federal minimum wage in 2016 is $7.25 per hour, but states may have higher rates. Employees who are entitled to overtime pay can receive one and a half times their normal rate for every hour worked over 40 hours a week.

Regardless of whom you hire to provide care for yourself or your loved one, you should have a written caregiver contract detailing the caregiver’s rights and responsibilities. Contact your attorney to make sure you are following the law when it comes to hiring a caregiver.

The Department of Labor produced a Consumer Guide helping families navigate these new regulations.  You can find the Guide at this link.

https://www.dol.gov/whd/homecare/homecare_guide.pdf

Recent Articles

The Medicare Open Enrollment Period Is Almost Here!

The Medicare Open Enrollment Period Is Almost Here!

Are you prepared for the Medicare Open Enrollment period? It is an essential time for beneficiaries to review and adjust their healthcare plans. This annual window, which runs from October 15th to December 7th, allows you to make changes to your Medicare coverage. In...

Shining a Light on Down Syndrome Awareness Month

Shining a Light on Down Syndrome Awareness Month

October is a special month dedicated to raising awareness about Down Syndrome, a chromosomal condition that affects millions of individuals worldwide. Down Syndrome Awareness Month provides a platform for advocates, families, and communities to come together and...

Senior Drivers: When Should You Hang Up The Keys?

Senior Drivers: When Should You Hang Up The Keys?

In today's car-centric world, it has become an entirely subconscious thought to pick up your keys and drive somewhere. However, as age progresses, there comes a time in every person's life when it may no longer be safe to do so. It becomes essential to evaluate when...

Group Homes For Adults with Disabilities

Group Homes For Adults with Disabilities

In our last blog, we discussed the broad ways to enhance the independence of adults with disabilities. Going over living arrangements, education/skill development, as well as community involvement and legal advocacy for special needs individuals. One such option...