![]() ![]() The employee can spend no more than 20% of his or her time providing “care,” which is defined as assisting the person with activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and assisting with instrumental activities of daily living (i.e., tasks that enable a person to live independently at home, such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care). The provision of “protection” means to be present with the person in their home, or to accompany the person when outside of the home, and to monitor the person’s safety and well-being. The provision of ‘fellowship’ means to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, on errands, to appointments, or to social events. Under the new regulations, the term “companionship services” means “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.” Companionship services also includes the 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.” The regulations also narrow the type of work that constitutes “companion” services. Workers employed directly by the family are still exempt from the FLSA’s overtime requirements. This means that if a family uses a third-party agency to provide companion care for a family member, the companion must be paid one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week. The revised regulations eliminate the companion exemption for any worker employed by a third-party employer. The Department of Labor, however, has decided that it must now modify its regulations to comport with Congress’ original intent. In the almost 40 years since the 1974 amendments Congress has not deemed it necessary to modify or otherwise alter the FLSA to increase or decrease its coverage with respect to companions. When Congress expanded the FLSA to cover domestic workers but not companions, the FLSA adopted regulations defining the type of work that qualified for the companion exemption. Companions, sometimes referred to as “elder sitters,” or “personal attendants”, have never been covered by the FLSA. In 1974, Congress amended the FLSA to include some, but not all, domestic workers. Since its inception, the FLSA exempted certain domestic workers (i.e., persons employed about the home). The following are a few brief highlights about the new regulations and Labor Code sections, and how they may impact the the elder care industry. ![]()
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