A nanny for granny: Employing caregivers in California

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As estate planning attorney and physician, I often advise my clients and their families about matters which only peripherally relate to estate planning as such. One of these issues is finding a caregiver for an aging parent and considering important related employment law issues.

Employing a Caregiver: Agency vs. DIY Approach

You have two options in employing a caregiver: 1. Perhaps the easiest method, go through an agency. 2. Do it yourself.  

Regarding agencies, there are two principal models: The medical and the non-medical. The medical agencies are frequently known as “Licensed Home Health” which provide skilled nursing and other services, and the non-medical as “Home Care Aide Organizations” which provide mostly assistance with the activities of daily living. The non-medical model is our topic here. Both types of organizations must be licensed. For more detail visit the California Association for Health Services at Home.

The do-it-yourself approach in hiring a Home Care Aide may be attractive if you have a particular person in mind who wants to be independently employed directly by you. This may result in higher take home pay for the employee (or lower cost to you) because there is no agency overhead.

In principle the care for youngsters with a nanny is like the care of elders by a caregiver. The main difference is that elders often require extended care that goes beyond the typical 8 hours for a nanny. For example, paying a caregiver who lives in your household full time may require a careful consideration of what the routine schedule for the caregiver is and to what extent he or she may be required to be available for additional care hours as the need arises. In other words, how are the “on call hours” going to be reimbursed? If the caregiver is employed by an agency, it is the responsibility of the agency to comply with California Wage Order for Household Occupations (“Order No. 15-2001 Regulating wages, hours and working conditions in the household occupations. Rev. 11/2020). If the caregiver is employed privately, following this and other employment related rules and regulations is your responsibility.

Hiring Home Care Aides: Considerations and Responsibilities

In California, caregivers (“home care aides”) who work for a home care agency need to be registered by the State of California, independent home care aides can choose to register. If you hire yourself, employing a registered home care aide is a good idea because they have undergone a background check utilizing the Livescan system. If you plan to hire an independent home care aide who is not yet registered, urge them to do so.

Home care aides may qualify as “Personal Attendants”, which is a subset of “Domestic Work Employees”. This has certain advantages for the employer. Personal Attendants must be employed by the “private householder” or a recognized health care agency. The “private householder” is almost always the person receiving in-home care. The overtime rules for Personal Attendants are more attuned to the home care situation. For more details go here: Employment Issues with Caregivers, Nannies, Personal Assistants.  If the home care aide is privately employed, the householder in need of care should therefore be the employer, not the children. Of course, children can reimburse their parent and manage the relationship.

Adhering to Legal Requirements and Best Practices in Caregiver Employment

Adhering to all federal and California requirements regarding the hiring and subsequent HR work for independent caregivers can be daunting. A step-by-step approach can be found here.

Perhaps the most important part of an employment agreement is a detailed job description that spells out exactly the level of care with details of the tasks that arise daily, weekly, etc.

Lastly, a word of warning, do not pay your household help or home care aid, or anybody, really, under the table. It’s against the law and there is just too much that can go wrong. A partial list is here.

 

See also The Future of Wealthcare , which examines, among other things, the worsening shortage of personal care assistants.

The Future of Wealth Care

 

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