What Are California’s Caregiver Laws?
Numerous categories of caregivers exist throughout California. For example, parents who care for their sick or disabled child can be considered caregivers under federal and state law. Thousands of other California residents provide companionship services, housekeeping, cooking, and grooming support to seniors in their community. Much of the work performed by caregivers is done on an informal basis. In these situations, caregivers may rely on informal caregiving guidelines that are not legally enforceable. Federal and state laws that govern how caregivers perform their work seek to establish basic protections for both caregivers and the loved ones they support. The first written caregiving laws in California were established in the mid-1970s under the Lanterman-Petris-Short Act, which established mechanisms for regulating care and services to the developmentally disabled in California. In 1984, California voters passed Proposition 70, which expanded the authority of the California Department of Social Services to license and regulate senior community care facilities, as well as innovative programs that facilitate the provision of care to the elderly and disabled in the home. In 1985, the state enacted the Senior Citizen Service Employee Law to regulate activities of both "independent" and "non-independent" caregivers who provide in-home care. The 1985 law established minimum employment standards for caregivers, including minimum wage, meal and rest periods, overtime pay, worker’s compensation coverage , and guidelines for social security and tax withholding. In 1991, the California Code of Regulations was amended to separate out the licensing and regulation of care facilities and agencies under the Community Care Licensing Division of the California Department of Social Services. As a result, the basic minimum laws and regulations that govern caregiver conduct now fall under Title 22 of the California Code of Regulations. The California Department of Industrial Relations, the federal Equal Employment Opportunity Commission (EEOC), and the U.S. Department of Labor, Wage Hour Division, also address caregiver laws. The EEOC and California Fair Employment and Housing Act prohibit caregiver discrimination based on age, race, color, national origin, religion, sex, sexual orientation, and disability, among other categories. The California Industrial Welfare Commission sets minimum wage and overtime standards that apply to most caregivers, while the DOL Wage Hour Division enforces federal employment laws that include the Family Medical Leave Act (FMLA), the Fair Labor Standards Act, and the Occupational Safety and Health Administration. The laws that regulate caregivers are constantly evolving to reflect both changing social values and advances in technology. As a new generation of senior care programs and facilities emerges to meet the needs of aging California residents, new regulatory and enforcement mechanisms will likely be enacted to ensure that caregivers are fairly compensated and that they perform their duties in a safe manner.
The Legal Definition & Obligations
Caregivers are not a one-size-fits-all kind of employee. And these unique needs require different legal definitions. It’s important to note that California Labor Code section 1720 gives us two possible definitions of a caregiver for the purposes of worker’s compensation. A "personal attendant" is someone who performs ministerial duties for those who need assistance, but not services that are formal in nature. A "healthcare worker," which is broken down into the more familiar categories of nurse, dentist, therapist, etc., provides formal medical care to those in need. For the purpose of Eldercare law, we are most concerned with the legal definition of the caregiver as it relates to Labor Code Sections 1720 and § 4311.
While a personal attendant is not required to be licensed, there are laws in place that require anyone handling medications or medical needs to have formalized training. While there may not be any law that requires a personal attendant to become certified, there are recommendations that they become certified. What this means is that while there is no law on the books requiring that a personal attendant be a certified home health aide, it is advisable to become certified for legal compliance, and general good practices. Generally, however, a personal attendant is not required to have a license or certification by the State of California or nationally.
Someone who qualifies as a "healthcare worker," however, must not only become licensed but work under the guidelines of those licenses. For example, nurses can work in both personal care and health care settings. Nursing assistants, who provide nursing tasks and assist in nursing and personal care, are also considered personal attendants and not required to be licensees. Home health aides, while having a very specific legal definition, can become home health aides as long as they pass exams and register with the Department of Health.
Caregiver Rights Under California Law
Caregivers are entitled to all the fundamental rights codified in the Labor Code, including requirements to pay minimum wage, overtime (for employees and certain non-exempt independent contractors), and to provide meal periods for certain shifts. Rest periods must also be afforded to employees, per the California Code of Regulations (CCR). The Department of Labor Standards Enforcement (DLSE) provides a number of fact sheets including "Overtime" and "Meal Periods" available online for the reader to further research the parameters of these rights.
Discrimination or harassment delineated under Labor Code sections 1102.5 and 6310 are prohibited on the basis of caregiving responsibilities. While Labor Code section 230.2 prohibits negative employment actions for the following:
- Taking time off to participate in school activities;
- Taking time off to enroll their child into school or child care services and to address existing child care problems;
- Some predicaments that might lead to family medical leave;
- Taking time off to attend to care of a parent, child, spouse, grandparent, grandchild, brother or sister;
- Taking time off to seek the assistance of domestic violence shelter services, police, a district attorney’s office, an attorney or other resources if seeking relief or to help ensure health, safety or welfare for the caregiver or their children;
While this does not provide a private cause of action (the employee must file a complaint with the Labor Commissioner to be investigated), an example would be an employer who terminates the employee because they know the employee is out of work due to a child illness.
Household employees who do not reside in the home are covered by the IWC Wage Order #15 and Household Goods Carriers’ minimum wage, overtime, meal and rest breaks and days of rest provisions.
Responsibilities & Rights
As providers of care services, whether in a private home or healthcare facility, California caregivers are bound by specific legal responsibilities and must comply with the state and federal laws that govern their field.
Unlike many other professions that involve providing services for another, such as lawyers and accountants, the state does not impose requirements on who may fulfill the caregiver role. There are no laws establishing specific hours of training for caretakers, or even requirements for the educational background upon acceptance to provide care. While the generally-accepted rules of proper conduct do apply to everyone, there are no unique employment sections that address wrongful acts of an individual caregiver.
The nurse aides providing in-home care under a MediCal funded program known as In-Home Supportive Services (IHSS) have duties that are somewhat more clearly spelled out, and are technically considered "employees-of-a-client" rather than a formal business. Rather than a workplace responsibility, these aides have a duty to act within their "scope of competence," and must be registered with the state to work legally. The scope limitation includes duties such as bathing, transferring, dressing, and hygiene assistance, but excludes activities like cooking, house cleaning, and laundry.
The following sections explore some of the legal responsibilities and violations that can arise in the caregiver context, and offer examples to highlight how the law is applied.
Crimes Committed by a Caregiver
There is no law specifically addressing crimes committed by caregivers, although assault and battery of those in their care are clearly actionable crimes. Other areas of law that are relevant to the provision of care are elderly financial crimes, theft, and neglect.
Negligence by a Caregiver
While there is no special law that applies to caregivers, the general body of negligence law absolutely applies. A caregiver, when acting reasonably, cannot be negligent by any amount, but the standard for "reasonably prudent person" is often gray, leaving much room for argument in negligence actions.
Confidentiality and Reporting Obligations
Although California Caregivers are not usually in a position to control confidential information about their clients, there are obligations imposed by federal and state law on those entrusted with maintaining confidentiality. For example, certain sensitive information about the individual, including condition, background, and diagnosis, cannot be disclosed without permission. This obligation of confidentiality lasts even after the termination of the relationship and is both a civil and a criminal violation to disclose. Additionally, certain types of information, such as non-accidental injuries on a minor, are obligated to be reported to the police and/or local authorities.
Labor Laws and Workers’ Rights
In California, employment laws have evolved to provide various levels of protection for caregivers in different employment arrangements. Depending on the classification of the caregiver—whether as an employee or an independent contractor— and the type of work agreement that has been made, different rules apply:
Employment Agreements
Although we examine the requirements of written employment agreements in detail elsewhere on this blog, we note here that while the vast majority of written employment agreements are not required by law, it can be a good idea to use them. A written agreement helps prevent potential disputes about work-related responsibilities, job duties, and other obligations.
Workplace Safety
Like all Californian workers, professional caregivers are protected by the Workplace Safety and Health Regulation Act (Cal. Labor Code § 6400 et seq.) To protect the safety of caregivers and the many Californians who employ them, the law places the burden of responsibility on both employers and employees . In particular, employers must minimize the risk of injury to caregivers by providing a safe workplace. Employees must also minimize the risk of injury to themselves and others by following safety procedures (Cal. Labor Code §§ 6401, 6402).
Paid Sick Leave
As we’ve seen, for most domestic service employees, sick leave is not mandated by state law, but employees should review their employment contracts to examine how an employer has handled sick leave.
On the federal level, the Family and Medical Leave Act (FMLA) requires an employer to grant its employees up to 12 weeks of unpaid leave to recover from their own illness, care for a family member, or bond with a new baby. However, FMLA applies only to employers who employ 50 or more employees. Under California law, domestic service employees are specifically exempt from this requirement. (Cal. Labor Code § 245.5(a)(4)).
Caregivers and the Law
When a caregiver believes their rights under the law have been violated, there are a number of complaints they can file to seek a resolution. The first step is usually to file a complaint with the California Department of Public Health (CDPH). Complaints, including anonymous ones, can be filed online or by phone.
The CDPH post-investigation provides a written report to the provider and complainant within 60 days of investigation completion. If a violation is found, the provider is given a citation. This citation outlines what specific laws or regulations were violated and may contain a plan of correction detailing how the citation will be remedied. If the caregiver does not agree with the outcome, he or she has the right to dispute the decision through an "informal appeal." This appeal process allows the provider to meet with a CDPH representative to present a different interpretation of events. If someone files a formal appeal, a hearing will be scheduled with the CDPH Administrative Law Judge (ALJ), similar to a trial.
If the CDPH is unable to resolve the situation, caregivers have the right to seek legal representation. In some instances, the aggrieved caregiver may hire an attorney to file a claim against the facility to seek lost wages or compensation, such as for pain and suffering and emotional distress. If the caregiver is part of a union, he or she may file a grievance with the union grievance officer, in accordance with the terms of the collective bargaining agreement. If the grievance procedure does not yield satisfactory results, the matter may be referred to arbitration.
Difficulties in California Caregiving
While the law provides for the rights and protection of California caregivers, the experience of caregiving can often bring challenges that are less straightforward. Understanding these challenges and how to resolve them can help caregivers protect not only their legal rights, but also their own well-being during an often-difficult period.
Lack of Support One of the biggest difficulties caregivers often face is a lack of support. Caregiving can take up the vast majority of a person’s time, and being available at all hours of the day and night can be overwhelming. Add into the mix other family responsibilities, the need to work, and the caregiver’s own health considerations, and being expected to be on call at all times to provide care for another individual can simply become untenable.
Solving this issue often requires an open and honest discussion with a caregiver’s family and the person they are caring for. If a loved one requires 24/7 care, then the caregiver may need to enlist other family members, or even professional caregivers, to assist. While this may seem impossible to arrange initially, a careful analysis of all family members’ needs and the potential availability of services can help to overcome shortages and find solutions that work for everyone involved.
Economic Hardships In many cases, caregivers face financial struggles as a result of taking time from work to provide care. However, today’s advancements in technology mean that the percentage of people with remote jobs is steadily increasing—from 20 to 70 percent in the last 15 years. A flexible work schedule or the ability to work remotely can help caregivers to maintain a source of income while providing essential care.
For some, though, financial struggles cannot be overcome. The required care may make it impossible to stay employed, while the cost of hiring a professional caregiver, paying for transportation to medical visits, or covering other expenses can quickly add up. In these situations, applying for government benefits and family leave can be of great assistance. Certain family members of veterans and caregivers of those with disabilities can also apply for aid through the Department of Veterans Affairs.
Caregiver Discrimination In some cases, employers may not be accommodating or supportive of a worker’s needs as they pertain to their caregiving duties. This can come in many forms, including wage theft, refusal to provide benefits, a hostile or dangerous work environment, or a lack of reasonable accommodation for the worker’s caregiving needs. Discrimination of this nature has been linked to an increase in physical and mental health problems. Fortunately, there are laws in place to help protect caregivers in these situations and many legal protections in place to ensure that employees receive appropriate treatment from their employers.
Protect Yourself Being a caregiver is one of the toughest jobs around. It comes with its own unique problems and limitations, and it’s important for those in these situations to know what their rights are under the law. A California elder law planning attorney can help you determine which adjustments need to be made to your caregiving situation to allow you to move forward with positive results.
California Caregiver Laws of the Future
Future trends in California caregiver laws will inevitably wage against the increasing population of adult caregivers currently providing care and their capacity to manage their health and finances in addition to their care obligations. Changes to existing laws may not be enough to bridge the gap as they are only as effective practically as they are enforceable. Accessibility of preferred legal mechanisms will take time , beyond that which is traditionally allocated to caregivers and their families. The gap between the care available and what is necessary leaves caregivers underserved and stuck in what they do best: caring for others.
The increasing number of adult caregivers in California will require greater access to caregiver respite programs, financial assistance, and healthcare. Due to the long-term nature of caregiving and the increased risks of injury heaped upon caregivers, continued advocacy for policy changes and legislative reforms will be necessary to keep pace with the challenges unique to adult caregivers.