Home Care Agencies Seek Exemption Status in Potentially Devastating COVID-19 Relief Law

Home care providers waiting to see how they’ll be affected by new federally mandated paid sick leave policies tied to the COVID-19 emergency will likely have to wait a little longer.

On Wednesday evening, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) into law, which — broadly — gives workers guaranteed paid sick leave and paid time off if they need to take care of children who are off school due to closures, among other scenarios.

Generally, the law applies to employees of companies with fewer than 500 workers, as large companies often already have paid sick leave and time-off policies baked into their compensation policies. The U.S. Department of Labor (DOL), however, can exempt companies from those mandates if they have less than 50 employees or are a part of the health care sector.

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But “the health care sector” has not yet been clearly defined, meaning the impact on home care is entirely up in the air.

Before the law goes into effect in two weeks, that desperately needs to be ironed out, Angelo Spinola, an attorney and shareholder at San Francisco-based Littler Mendelson, told Home Health Care News. Littler Mendelsen is one of the world’s largest labor and employment law firms.

“It’s a very, very significant issue in the industry right now, depending on how a health care provider is defined,” Spinola said. “And if that is not inclusive of home care, then we have real problems because a lot of these companies need their workers to be out with the seniors and the patients. And a lot of these workers in this industry are single moms who have kids that are home from school.”

Due to the confusion, the priority right now for the home-based care industry is convincing the DOL that home-based care industries should be exempt from the newly signed law.

If the industry is not persuasive enough, the law could be devastating. Many small and mid-sized agencies operate on razor-thin margins with tight cash flow, so any sudden, added costs could put them out of business.

While it’s near impossible to predict how DOL will respond, home care providers have a strong argument in seeking an exemption.

Throughout the country, tens of thousands of older adults and individuals with disabilities are quarantined within their own home, either as a precaution or by necessity. Home care providers can help mitigate damage done by the coronavirus in several key ways, whether that’s by directly caring for the isolated individuals or supporting their health care peers higher up on the acuity ladder.

Additionally, many existing home care clients receive care to help maintain their health. If home care workers weren’t available in their markets, client health could start to deteriorate, leading to more hospitalizations when bed space is already extremely limited.

In addition to sick leave, 12 weeks of mostly paid family leave would not be feasible for the vast majority of agencies, according to Spinola.

“What that will mean is that there’s not going to be that many caregivers left to take care of the seniors,” he said. “There’s already a caregiver shortage. We’re seeing a lot of caregivers who are not wanting to work right now because of coronavirus fears. So, if now they are entitled to these leaves and subject to this law, it’s going to become even more of a hazard for our seniors.”

While the FFCRA is well-meaning, it could be catastrophic to the nation’s response plans.

“One franchiser told me that 80% of the network would have to go out of business,” Spinola said. “And the idea of using a tax credit to pay for this, there’s not time for that.”

Under the FFCRA, employers are eligible to receive tax credits for 100% of what they pay out to employees during leave. But that won’t account for the loss now — or the loss of labor.

The law, at this point, is fluid. The DOL is going to be asked to clarify the specifics in the coming days, and its decisions will have wide-ranging consequences.

What’s imperative now is getting lawmakers on the same page as the decision makers in health care, specifically those within home-based care, according to Spinola.

“We need social isolation and that screams home care,” he said. “Home care is an essential function that has to continue to operate. [Regardless of what] stimulus packages and relief that we’re providing to other non-essential workers, these are essential workers that need to be out there in the field.”

Meanwhile, the Trump administration is reportedly considering major bailouts for affected industries, such as hotels and airlines.

If the home-based care industry is going to be on the front lines of the coronavirus fight, the government should consider granting it aid as well.

“[This bill] is helpful — a good start,” Jeff Bevis, CEO of FirstLight Home Care, told HHCN. “But it does not go anywhere close enough to address the needs of small business owners across the home care industry.”

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