September 19, 2013 5:01PM

Obama Administration Decrees Overtime for Home Health Companions

In a long dreaded move, the U.S. Department of Labor has issued a final rule requiring that time-and-a-half overtime be paid to at-home attendants who put in more than 40 hours a week caring for a disabled or elderly person. "Many home health aides provide live-in services, and overnight and weekend hours could result in their receiving substantial amounts of overtime pay," notes Steve Miller at the Society for Human Resource Management. Families employing such attendants will also be required to keep records of time worked. There are a few narrow, hard-to-use exceptions. The rule also brings attendants under minimum wage laws, but it's the overtime provision that has raised the most fear.

This is a terrible rule. The fear and anger it has stirred is coming not just from commercial employment agencies, as some careless media accounts might leave you to think, but above all from elderly and disabled persons and their families and loved ones, who know that home attendant services are often the only alternative to institutional or nursing home care. 

Even if you've followed this issue you probably had no idea that in April, ADAPT, a well-known disability-rights group, staged a demonstration in Washington, D.C. to protest the proposed overtime rule and even blocked all the entrances to the Department of Labor to make its point. That was hardly reported at all in the media; I learned about it through Prof. Samuel Bagenstos's blog on disability rights law

The rules are likely to bite especially in California, which has a distinctively generous statewide arrangement (IHSS, or In-Home Supportive Services) favorable to home-based care. According to comments filed in March by DREDF (Disability Rights Education & Defense Fund), another leading disabled-rights group, it's "highly unrealistic to assume that the state and local governments would be willing to pay [overtime]. It is far more likely that IHSS would simply cap individual workers’ hours at 40 hours/week."

At present, for more than 28,000 mostly low-income Californians, the liberal state program is willing to pay for up to 65 hours a week of companion care carried out by family members themselves. Whatever the pluses and minuses of paying people to care for their own loved ones, the program is unlikely to survive in its current form if an overtime entitlement that cannot be waived by mutual consent is overlaid onto it. Pointing out that 40 years ago "the vast majority of PWD [persons with disabilities] with high PA [personal attendance] needs were institutionalized," DREDF wrote that "we cannot support the proposed rule change because of the possible unintended consequences to PWD and their families" both publicly and privately paid. 

Don't assume that companions themselves will benefit, even assuming they manage to stay employed. Many will simply see their hours cut back. (Cutting employees' hours as an adaptation to new law? Who could have seen that coming in the era of ObamaCare?) So instead of 12 hours x 6 days at one home spent playing gin rummy between client naps and making sure no health emergency is gathering, the work week will be reshuffled to constitute, say, 36-hour weeks for two different clients, resulting in twice the commuting and job search hassle, twice the handoffs to other attendants (always a time of elevated safety risk, as the medical world has learned to its regret before) and, for the disabled person, twice the number of unfamiliar faces cycling through the house. 

If Congress can muster the will to stand up to the backers of the plan -- notably unions, organized employment lawyers, and cause groups in the liberal foundation orbit -- it could still move to block the rules before the effective date of January 2015.