Private Duty/Extended Care: DOL Issues Revised Wage Requirements

The DOL has been quite busy with regards to issuing regulations that affect home health and home care.  As many agencies have erred on the side of caution, making sure staff do not work more than 40 hours to avoid the overtime rule, sometimes the rules regarding wages can get murky.

For instance, for private duty home care in which 24-hour care is required by a live-in aide, a new explanation from the DOL has been released.

  • Less than 24 Hours: All hours must be paid even if the caregiver is allowed to sleep.
  • 24 Hours or More: If an agreement is made with the caregiver and the caregiver can reasonably receive no more than 8 hours of uninterrupted sleep, then those 8 hours are unpaid.
  • Live-In Caregiver: If the employee does not have another home and lives with the client, then 8 or less hours of sleep per day will be non-paid as long as the agency and caregiver agree.

What qualifies for non-interrupted sleep and non-payable hours?

  • Adequate Sleeping Facilities: basic sleeping amenities (bed, linen, etc.), reasonable comfort, bathroom access and access to a kitchen for use. The sleeping, bathroom, and kitchen access can be private or shared.
  • Uninterrupted Sleep: A caregiver must receive 5 consecutive hours of uninterrupted sleep. Interruptions that occur void this requirement.
  • Agreement: It is best to have this sort of arrangement in writing. However, a verbal, implied agreement meets the needs of DOL requirements. Any attorney will say to always get it in writing and that is the way it should be done!

Interruptions to Sleep Time: The agency must pay the employee for these sleep hours as they did not meet the uninterrupted requirement.

Reasonable Agreement: Live-in employees who spend the majority of their time within the client’s home may agree in writing to certain instances in which their time goes unpaid. It would be unreasonable to assume that a caregiver is constantly working 24 hours per day, 7 days a week. The DOL understands this has a reasonableness clause that allows for eating, personal activities, entertainment and sleeping to be excluded from payable time that must be compensated.

While these rules are not new, the new clarifications will go a long way to help agencies ensure compliance. The need for private duty care continues to rise as more elderly adults choose to receive care in their own home rather than going to an assisted living facility or nursing home.  As this market grows, agencies that provide this type of care will also grow but must have systems in place that comply with federal DOL regulations. If you have any questions, please let us know and we’d be glad to discuss in more detail.