CDSS has issued instructions about implementing IHSS overtime, travel time and waiting time rules effective February 1, 2016. These rules will be in effect because of the decision in Home Care Association of America v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) which upheld the United States Department of Labor regulations applying the Fair Labor Standards Act to domestic workers who work for third parties. Please note that this may change because a petition for certiorari is pending in the United States Supreme Court.
Providers will be entitled to overtime (time and one-half) for time worked over 40 hours per week. A single provider for a single recipient will be able work the maximum number of hours authorized for the recipient. The weekly number of authorized hours will be the number of monthly hours divided by four. For multiple providers for a single recipient, the weekly number of hours can be divided in any manner among the providers. For a single provider working for multiple recipients, the provider will be limited to working a total of 66 hours per week. Counties will be sending informing notices that include the weekly authorized hours.
The recipient may authorize the provider to work more than the maximum weekly hours without county approval if 1) the adjustment does not result in the provider working more than a 40 hour week when the recipient is authorized for 40 hours or less per week, and 2) does not result in the provider receiving more overtime hours than normally worked during the month, and 3) does not result in the provider working more than 66 hours in a week for multiple providers.
If the recipient needs the provider to work more than the maximum weekly hours and the work performed does not meet these criteria, the recipient must contact the county to request an exception to allow the provider to work additional overtime hours. Counties should grant exceptions when the additional hours are 1) necessary to meet an unanticipated need, 2) the additional hours are related to an immediate need that cannot be postponed until a back-up provider arrives and 3) the additional time is needed to ensure the recipient’s health or safety. The recipient will be sent a notice granting or denying the exception request.
The county can adjust weekly hours when it becomes aware of a known or recurring or periodic need that requires an adjustment in hours to cover. The county will send written notice of such an adjustment.
Providers who work for multiple recipients will be entitled to time traveling between the two recipients up to seven hours per week. Travel time does not count toward the maximum 66 hours per week for providers working for multiple recipients.
Providers will be entitled to on duty waiting time, that is time not actively performing services but the provider cannot effectively use the time for their own purposes because the time is unpredictable and of unknown duration. Providers will not be entitled to waiting time if the provider is informed in advance that they will be relieved of performing work duties for a specified period of time during which they can engage in personal business.
Providers must submit a new Provider Enrollment Agreement (SOC 846) no later than April 15, 2016 or be terminated from the program effective May 1, 2016. If the Agreement is submitted by June 1, 2016, the provider can be retroactively reinstated. If the Agreement is submitted after June 1, 2016, the provider can be reinstated but will not receive back pay.
CDSS has created the IHSS Program Recipient and Provider Workweek Agreement forms to assist providers who assist multiple recipients in apportioning their hours. Counties must have a process for assisting with these forms.
CDSS has also created a penalty system for providers who do not follow the overtime rules that will become effective on May 1, 2016. CDSS will issue another All County Letter discussing the penalty system. ACL 16-01 (January 7, 2016).