The U.S. Labor Department won't start enforcing its new rule requiring higher pay for many home healthcare workers just yet, despite a recent court decision upholding the rule.
The new rule won't go into effect until 30 days after the District of Columbia Circuit Court of Appeals issues a mandate making its opinion effective. It's unclear when that mandate will come because industry groups have asked the court to wait until after they try to appeal the matter to the U.S. Supreme Court.
The rule was slated to go into effect Oct. 13.
Last month, the circuit court upheld the rule after industry groups challenged it. The Labor Department and labor groups say the rule will mean fair wages for home healthcare employees, while industry groups say it will make home healthcare unaffordable for many seniors.
For years, home healthcare agencies haven't had to pay minimum wage or overtime to companionship workers who provide “fellowship, care and protection” to seniors and disabled people. The rule would significantly narrow the definition of companionship workers to those who spend no more than 20% of their time providing actual care, such as feeding and bathing. It would also no longer exempt companionship workers employed by third parties, such as home healthcare providers, from wage protections.
In recent court documents, the industry groups asked the court to hold off on issuing its mandate pending an appeal to the Supreme Court, saying that doing so would ensure “certainty for the entire industry and the millions of elderly and disabled consumers who depend on its vital services.”
Industry groups involved in the case include the Home Care Association of America, the National Association for Home Care & Hospice and the International Franchise Association.
The government, however, has asked the court to issue its mandate quickly, arguing in court documents that the industry groups' “contention that the final rule will harm consumers and workers was rejected in rulemaking comments submitted by consumer advocates, labor representatives and industry experts.”
Mark Peters, a partner at law firm Waller Lansden Dortch & Davis, said he thinks it's likely the circuit court will honor the industry group's request and wait to issue its mandate.
“Given the impact of issuing the mandate early, which would effectively require a significant number of companies to change the way in which they are paying their employees, I suspect the court would be inclined to stay issuance of the mandate until all the appeals have been exhausted,” Peters said.
The Labor Department had already pledged to exercise discretion until the end of the year in deciding whether to go after providers once the rule goes into effect. Friday's announcement doesn't change that, the department said.
