BRIEF: Exceptions Necessary for Home Care Hours Caps

State policies that cap home care workers’ hours must allow for an exceptions process, a new brief from a coalition supporting the implementation of the DOL home care rule says.

The National Employment Law Project (NELP) authored the brief, with input from PHI, the National Domestic Workers Alliance, the Bazelon Center, and Caring Across Generations.

Since the implementation of a federal rule change extending time-and-a-half overtime pay to home care workers, some states have instituted caps on workers’ hours to avoid paying higher wages to workers who are paid through Medicaid.

However, if such caps lead to lower quality of care, they risk running afoul of the Americans with Disabilities Act and/or the Supreme Court’s 1999 Olmstead decision, both of which affirm that people with disabilities have the right to be able to live in the “most integrated setting appropriate to their needs,” the fact sheet says.

Therefore, the fact sheet argues, states must build short-term and long-term exceptions into their overtime caps to ensure that consumers receive the care to which they are entitled.

State Exception Policies

The fact sheet cites Oregon as a state with particularly thoughtful exceptions processes. Workers can exceed the 50-hour-a-week cap if a consumer lives more than 45 minutes from the nearest provider agency, if a consumer has unique or complex needs, or if there is an emergency situation, among other exceptions.

Washington State has recently introduced a 40-hour-a-week cap which has similar exceptions (pdf).

Illinois, however, began to enforce a hard 40-hour-a-week cap, which includes five hours of travel time, on May 1. It includes exceptions only if overtime is inevitable, such as in cases of medical emergency or natural disasters.

SEIU, which represents the workers affected by Illinois overtime cap, filed a lawsuit against the state on May 6, the Associated Press reported.

— by Matthew Ozga