Obama administration rules for homecare workers upheld; time for NC to get on board

If there were a contest to identify the most neglected group of workers in modern North Carolina, the folks commonly referred to as homecare workers would be top contenders.

Homecare workers – including certified nursing assistants, home health aides, personal care aides, caregivers, and companions – are the people who perform essential services that help keep people out of institutions and provide them the care and support they need to stay in their own homes. This segment of the North Carolina economy includes more than 47,000 workers and is expected to grow by 22 percent by 2020 to meet the needs of our rapidly expanding elderly population.

The North Carolina Justice Center’s 2015 report Fair Pay for Quality Care described the many challenges homecare workers face, including low wages and lack of paid leave to care for themselves and their own family members. According to last year’s investigative report by Raleigh’s News and Observer, Medicaid-funded private companies, including homecare agencies, were the single largest group of employers with unresolved “wage theft” cases investigated by the North Carolina Department of Labor in FY 2014.

Fortunately, there are important signs of progress for workers in the homecare industry. After decades of exclusion from the most basic employment protections, federal rules advanced by the Obama administration now assure that these workers are covered by federal minimum wage and overtime law. This change ensures a measure of dignity and fairness for those workers engaged in the intimate and demanding work of providing companionship and care to the elderly and disabled in their homes. Homecare workers must now be paid time and a half for all hours worked over 40 in a single workweek, and must be paid at least minimum wage for their straight time hours, including any time spent traveling between client’s homes.

Even though the new regulations went into effect, however, some homecare agencies in North Carolina may not yet be following the law. After the Obama administration’s announcement of the expanded interpretation of federal regulations in 2013 with an implementation deadline of January 1, 2015, litigation held up the implementation. A federal appeals court ruling, however, upheld the rules last August and, in a very happy development last week, the Supreme Court confirmed the implementation date when it refused to hear the employers’ appeal.

Now that all the legal challenges are out of the way, it is essential that homecare agencies and the state take action to make certain that these new protections are fully realized for this critical segment of the workforce.

What can North Carolina do to ensure homecare agencies are following the law? Providing written guidance to the agencies that receive Medicaid funding to perform homecare services would be a smart first step. The state should gather data about the Medicaid-funded homecare workforce’s hours and compensation, and increase its reimbursement rate to cover additional costs that will be incurred for travel time and overtime. The Department of Labor should inform homecare workers of their rights. The Division of Medicaid must create policies with reasonable exceptions to any caps on hours worked, not cut back on services to consumers, and maintain consumer-directed care options.  Agencies should accurately record hours worked, including travel time.

North Carolina’s population is aging rapidly, with an expected doubling of our over-65 population expected by the middle of this century. This shift means a growing demand for homecare workers, more than half of whom earn less than the federal poverty line. This is at least in part due to our state’s Medicaid reimbursement rates, which have not risen since 2009 and are more than $4 per hour less than the national average.

Not only do homecare wages in North Carolina leave workers in poverty, but most of these workers lack paid leave to adequately care for their own family members with health problems. The lack of paid leave is also a serious problem for the workers themselves, because the physically demanding nature of the job means they are prone to injuries. It also puts sick home care workers in the unacceptable position of choosing between sacrificing their own wages or risking the health of the patients they serve.

As a state, we can do better for the workers who care for our most vulnerable populations. An important first step is making sure these workers are paid the legally mandated minimum wage and overtime for the work they perform. The excuses for further delay have run out.

Carol Brooke is a Senior Attorney in the Workers’ Rights project of the North Carolina Justice Center.