On December 31, 2014, the U.S. District Court for the District of Columbia issued a Temporary Restraining Order (TRO) blocking the U S Department of Labor from enforcing a proposed new definition of “Companionship Services.”
This decision follows on the heels of a December 22 ruling by this same Court which restored the rights of home care consumers to benefit from the “companionship services” and “live-in” exemptions regardless of whether their caregivers were employed by persons receiving the care or by a home care company.
The lawsuit challenges a rule that would have significantly changed a longstanding 40 year old Federal overtime rule known as the ‘companionship exemption’ under the Fair Labor Standards Act. The new rule would have defined ‘companionship services’ to be primarily “fellowship” and “protection”. Under the new DOL rule, the exemption would not have applied if home care workers serving patients gave more than incidental personal care services. The proposed rule would have required all current caregivers to be paid overtime compensation in almost all cases. This change would have led to higher costs which would have to be borne by infirm individuals or by the states and federal government through financially strapped programs such as Medicaid.
The effort for temporary relief was supported with detailed affidavits of likely harm submitted by two disability rights advocacy groups, The Centers for Independent Living and ADAPT along with the Kansas state Department on Aging which is concerned about the financial stability of its home care programs if overtime compensation is required.
The next phase of the case will occur quickly, as the court has scheduled a briefing and a hearing on whether a Preliminary Injunction should be issued. A TRO can be in force for no more than 14 days while a Preliminary Injunction can be in effect until a final ruling on the case.
The hearing is set for January 9. The judge indicated that he may rule on the preliminary injunction at the hearing, but he would rule no later than January 13.
During the time in which the TRO is in effect, home care companies can continue to pay home care aides and personal care attendants without added overtime compensation [per usual in Florida]. Home care companies are advised to consult competent counsel to determine if they qualify to use the exemption. If the requested injunction is granted on January 9, the exemption from overtime will continue until the court’s final ruling or the Court of Appeals reverses the injunction. The Department of Labor has previously indicated that it would appeal any adverse ruling of the court.
Stay tuned to Private Duty Today and Leading Home Care Report for more updates on this developing story.