Written by Stephen E. Zweig.
This afternoon, Judge Richard Leon, who had temporarily stayed the U.S. Department of Labor’s Final Rule on Domestic Service Employees until January 15, 2015, said that he would issue a ruling on a preliminary injunction next Wednesday, January 15, 2015. The case is Home Care Association, et. Al., v. David Weil, et. al. At issue is the U.S. DOL’s narrowing of the “companionship services” exemption.
The Final Rule, which was to take effect January 1, 2015, significantly narrowed the companionship services exemption. For decades, a home care worker has been considered an exempt “companion” even if s/he primarily provided “personal care” services. The Final Rule eliminated the exemption if the worker spent more than 20% of hours worked each work week performing assistance with “activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and instrumental activities of daily living, which are 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 Final Rule also eliminated the exemption if the worker performed any “medically related services,” such as “catheter care, turning and repositioning, ostomy care, tube feeding, treating bruising or bedsores, and physical therapy…” or any general household services, such as “vacuuming, dusting, or cleaning up after individuals other than the elderly or ill family member.”
Essentially all that was left of the companionship services exemption’s prior scope was “elder-sitting.” This covered duties limited to (i) “fellowship,” meaning “to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or social events,” and (ii) “protection,” meaning “being present with the person in their home, or to accompany the person when outside of the home to monitor the person’s safety and well-being.” Examples of “fellowship and protection” are activities such as “watching television together, visiting with friends and neighbors, taking walks, playing cards, or engaging in hobbies.
Regardless of how Judge Leon rules, an appeal is likely to be taken to the D.C. Court of Appeals.