Home-based care providers have had to deal with an uncertain legal and regulatory environment for almost two years at this point.
It’s created bottom-line challenges as well as workplace ones.
Cheryl Stanton, the chief legal and government affairs officer at BrightStar Care, experienced this first hand when the U.S. Occupational Safety and Health Administration (OSHA) vaccine mandate was announced.
“The mandate, it’s what we already had in place as a company,” Stanton said at the Home Health Care News Home Care Conference earlier this month. “But still, the hostility that I got from employees from describing the program we already had – which was now being required by the federal government – was unreal. It was to the point where I was getting instant messages and calls daily. The last question I got was, ‘When Joe Biden fires me, will I get unemployment benefits?’”
The Chicago-based BrightStar Care is one of the largest home care franchise companies in the nation. Its overall network consists of about 340 personal care locations in 38 states. The company also has senior living communities located in the Midwest.
Daily questions from employees on shifting rules and regulations have become regular for providers. The worst part is that providers often don’t have the answers.
For instance, the OSHA private-employer mandate was halted by an injunction. On Sunday, however, it was revived by the 6th Circuit Court of Appeals.
Compliance dates have been pushed back, but now anti-mandate advocates are hoping for a challenge at the Supreme Court level for another stay.
But whether the Supreme Court takes up the case or not, for a lot of home care providers like BrightStar Care, it really doesn’t change much.
And while the vaccine-specific mandates are taking up most of the oxygen, there are plenty of other legal risks that providers should be paying more attention to as the court processes play out on all of the federal mandates.
Part of the OSHA emergency temporary standard (ETS) for some home care employers, for example, is providing paid sick leave to employees.
”I think a lot of folks are missing a lot of what the ETS requires,” Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, said at the conference. “If somebody is out because of COVID, or they’ve been exposed at work, there’s a paid sick leave component. And a lot of companies aren’t complying with that.”
Compliance is key when it comes to COVID-related paid sick leave. If it’s not offered, fines from OSHA can be significant – up to over $13,000.
“My guess is that those requirements will continue,” Stanton said. “So we’re obviously complying with that.”
In the same vein, enforcement from the U.S. Department of Labor (DOL) – where Stanton formerly served as the administrator of the wage and hour division – remains a risk.
And from Stanton’s perspective, it makes sense that the DOL is continuing to be harsh on enforcement when it comes to wage and hour issues in home care.
“The philosophy really focuses on workers who are at the lower end of the wage and education scales and have less access to recourse,” Stanton said. “So that’s why the home care industry remains a focus.”
Because of that focus, it’s imperative that home care providers are keeping their ducks in a row and making sure that they aren’t subject to enforcement based on rate manipulation or other claims.
“Labor costs are going up,” Spinola said. “And so there’s all these different pay rates, which create overtime and calculation issues, as well as rate manipulation claims. We’ve seen, I think, five DOL cases around the country right now. The DOL is just really, really active on the enforcement side. And as an industry, I believe we are still a little behind on the compliance side.”
The post DOL Oversight Ramping Up, But Home Care Industry ‘Still a Little Behind’ on Compliance appeared first on Home Health Care News.
