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Companions to the Elderly and Individuals with Disabilities
The information provided here is intended to assist employers in determining whether state and federal regulations apply to domestic service employees who provide companionship services to the elderly or persons with an injury, illness or disability. It is also important for employers to determine what constitutes hours worked so that employees are paid properly.

Q. If an individual is hired to stay with an elderly person or a person with a disability in the home of the person, must minimum wage and overtime be paid?

A. Possibly. Although both state and federal law provide an exemption for employees who provide companionship services, the federal law changed substantially in this regard in 2015. The federal exemption is now only available if the employer is the person being cared for or the family of that person. It is not available for third-party employers like home care staffing agencies. In addition, the definition of companionship services is now more narrowly defined. 

Companionship services which qualify for the federal exemption are limited to the provision of “fellowship” and “protection” for the person receiving care. The provision of “care” is also allowed if it is attendant to and in conjunction with fellowship and protection and does not exceed 20 percent of the total hours worked in the work week. Companionship services does not include domestic services performed primarily for the benefit of other members of the household, such as making dinner for the entire family or doing laundry for another member of the household. 

Under the federal regulations, “fellowship” means to engage the person in social, physical and mental activities. “Protection” means to be present with the person to monitor the person’s safety and wellbeing inside or outside the home. Examples of fellowship and protection include activities such as conversation, reading, playing games, participating in crafts or going on walks or errands such as appointments or social events with the person. “Care” is defined as assistance with the activities of daily living, such as dressing, grooming, feeding, bathing, toileting and transferring or instrumental activities of daily living such as meal preparation, driving, light housework, managing finances, taking medications and arranging medical care. 

Oregon law is similar but is not as restrictive. State law has no restriction preventing third-party employers from claiming the exemption. Oregon law also allows the employee to provide care services, including housekeeping related to care, such as bed making, washing clothes and similar services, except that general housekeeping services unrelated to the care of the person may not exceed 20 percent of the hours worked in the work week. In applying the law most beneficial to the employee, employees who meet the exemption under state law but not federal law would be exempt from the Oregon’s higher state minimum wage but not from the federal minimum wage of $7.25 per hour, and overtime would be due for hours worked over 40 in a work week.

Q. What about nursing services relating to the care of persons who, because of advanced age or physical or mental infirmity, cannot care for their own needs?

A. Both state and federal regulations exclude those services that require and are performed by trained personnel such as registered or practical nurses from the definition of “companionship services,” and employees performing such services are not exempt under either the state or federal minimum wage law.

Q. Are there other protections that apply to employees providing companionship services?

A. Yes. Unless the companionship services provided by an employee meets the stricter federal standard discussed above, Oregon’s Domestic Workers’ Protection Act entitles them to overtime for hours worked over 40 in a work week and for hours worked over 44 in a work week if the employee resides in the home of the person receiving care. Oregon law also requires that domestic workers have at least 24 consecutive hours of rest each work week and if the employee worked at least an average of 30 hours per week in the previous year, they must be given at least three paid personal days off. In addition, if the worker resides in the home of the employer, they must be permitted to cook their own food, subject to reasonable restrictions based on the religious or health needs of the home’s residents.

Q. If an employee is able to eat and sleep on the premises, do we have to pay them while they are eating or sleeping?

A. Not necessarily. If the shift is 24 hours or longer in duration, the employer and employee may agree to exclude meal periods when the employee is relieved of all duty for at least 30 continuous minutes, and a regularly-scheduled sleeping period of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished and the employee can usually enjoy an uninterrupted sleep period. If the sleeping period is longer than eight hours, only eight hours may be excluded from compensable hours worked. 

If there is no express or implied agreement, no meal periods or sleep time may be excluded from hours worked. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the interruptions prohibit the employee from getting at least five continuous hours of sleep time, the entire period must be counted as hours worked.

If the companion resides on the premises, an employer must provide the worker at least eight hours of rest within each 24-hour period and a space with adequate conditions for uninterrupted sleep. If the period of rest is interrupted by a call to duty, any time worked during the rest period must be paid at one and one-half times the employee’s base rate regardless of the number of hours worked in that work week. 

An employee who resides on the premises is not considered as working all the time the employee is on the premises. Ordinarily, the employee may engage in private pursuits and have complete freedom from duties during certain times and may leave the premises for the employee’s own purposes. Any reasonable agreement between the parties which takes all of the pertinent facts and circumstances into consideration will be accepted. Best practices include putting such agreements in writing.

Updated October, 2018

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT
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