DOL Releases Fact Sheet Clarifying FLSA Treatment of Paid Family Caregivers

The US Department of Labor (DOL) has released a factsheet clarifying the application of Fair Labor Standards Act (FLSA) wage and hour standards to family caregivers. The fact sheet provides general information regarding how the FLSA’s requirements apply to the employment of a family or household member paid through Medicaid-funded and other publicly funded programs offering home care services. The fact sheet provides several hypothetical examples that make it clear that Medicaid programs can and should still take into account the number of hours of natural supports available to an individual when determining how many hours of paid supports to include in a plan of care, even if the paid caregiver ultimately turns out to be a family or household member. 

The fact sheet reinforces that “when a paid care provider is a family or household member of the person receiving home care services, the decision to hire the family or household member does not turn all care provided into employment.” Instead, there is “both a familial or household relationship and an employment relationship, and only hours worked within the scope of the employment relationship are covered by the FLSA.” In these circumstances, DOL clarifies, the “an employment relationship is limited to the paid hours contemplated in the plan of care or other written agreement developed with the individual and approved by certain Medicaid-funded or certain other publicly funded home care programs.”

The fact sheet repeats the provision in the rule that indicates that the plan of care, in delimiting the hours to be governed by the employment relationship, must be “reasonable.” DOL clarifies the meaning of the term reasonable in this context, indicating that “a determination of reasonableness will take into account whether the plan of care would have included the same number of paid hours if the care provider had not been a family or household member of the consumer.” In other words, “a plan of care that reflects unequal treatment of a care provider because of his or her familial or household relationship with the consumer is not reasonable.” The program “may not reduce the number of paid hours in a plan of care because the selected care provider is a family or household member,” nor may it require an increase in the anticipated amount of unpaid hours in order to reduce the number of paid hours simply because the same family or household member is providing both types of supports. The examples also make clear that “the analysis of reasonableness for FLSA purposes does not depend on the residential setting or the level of natural supports. Further, the analysis does not depend on the nature of the services offered. In one example, a mother who is paid to provide 40 hours of care to an adult son also provides additional unpaid care to her son, such as cleaning his apartment or helping him prepare for bed, and DOL emphasizes that “those activities are part of the familial relationship and the time need not be paid,” even though, in the absence of those specific natural supports, paid supports might be necessary. 

FMI: The fact sheet is available at http://www.dol.gov/whd/regs/compliance/whdfs79f.pdf.