When you picture a home health aide, what do you see?
Do you see someone sitting in a comfortable chair, chatting with a perfectly healthy companion while they both chortle at Dancing with the Stars? Or do you see a trained professional working with a patient—helping with essential daily activities such as dressing, bathing, medication reminders, walking, and transferring the patient from bed to wheelchair?
Most Americans recognize that home health aides fall into the second category. Unfortunately, federal law does not. Home health aides are excluded from the minimum wage and overtime protections of the federal Fair Labor Standards Act because of something called the “companionship exemption.” Designed in the 1970s, this exemption was slipped into the law to ensure neighborhood babysitters and sporadic workers would not be given federal employment protections. Unfortunately, the exemption has also excluded the professionalized home health aide workforce as well—many of whom work full-time.
Home health aides are trained professionals who do demanding work that is increasingly skilled. To work for home health agencies, home health aides must receive many hours of classroom training (which is regulated by state law) either through a home care agency or a private school. Their work encompasses everything from feeding, bathing, and toileting patients to assisting with medication and guiding patients through range-of-motion exercises.
The lack of minimum wage and overtime protections for home health aides hurts more than just workers. Consumers inevitably suffer as well. Because home health agencies are not required to pay home health aides overtime, home health aides work extremely long hours—even though many home health care agencies are for-profit corporations that charge customers considerably more than they pay their workers. This leads to a stressed-out, overtired workforce that is more likely to make mistakes. Unsurprisingly, the long hours and low pay also lead to heavy turnover among home health aides, which results in less continuity of care for patients.
A few years ago, the Supreme Court rejected efforts to dismantle the companionship exemption. The Labor Department has repeatedly signaled its willingness to write new regulations that would extend the Fair Labor Standards Act’s protection to home health aides (amending the regulation is on the Labor Department’s agenda for this year), but it has repeatedly failed to do so. Earlier this year, however, legislation that would end the companionship exemption was introduced in the U.S. House and Senate.
In the meantime, states and localities are providing home health aides with relief. In some cities, such as New York, home health aides are unionized and covered by living wage laws. The states are also making progress. Many states require that agencies pay home health aides the minimum wage, and some require overtime as well. An article in the November-December 2011 issue of Clearinghouse Review: Journal of Poverty Law and Policy will explore the changing landscape of law and policy affecting home health aides and analyze a recent Pennsylvania Supreme Court case upholding a section of Pennsylvania’s minimum wage law requiring home health agencies to pay overtime to their employees.