Monthly Archives: November 2015

Supreme Court Denial of Stay Means Minimum Wage, Overtime Pay for Home Health Aides

For the first time since Congress passed FLSA in 1938, home health aides, also known as domestic service workers, are now eligible for minimum wage and overtime pay. Earlier this month, Chief Justice Roberts denied Home Care Association of America’s request for stay of issuance of mandate in the case Home Care Association of America v. Weil.

Home Care Association made waves across the labor law and health care industry this past August when the D.C. Circuit Court upheld Department of Labor (DOL) regulations that extend minimum wage and overtime protections to home health aides. Home Care Association may still appeal, but legal experts muse that even if the appeal is granted, it is unlikely to prevail.

Labor activists heralded the decision as a momentous occasion for the domestic work industry. The home health aide industry encompasses nearly two million domestic workers—and expanding. It is the fastest-growing occupation in the nation. Domestic workers typically operate behind closed doors in a highly unregulated economy with little workplace protections. As a result, labor trafficking and exploitation are consistent concerns in the industry.

In the decades since its inception in 1938, the Fair Labor Standards Act (FLSA) has left out home care aides and exempted them from wage-and-hour requirements. Some labor activities charge that the exemption is driven by racism against a class of workers largely composed of immigrants and women of color. The FLSA exemption meant that employers were not required to pay domestic workers minimum wage or compensate them for working overtime. The D.C. Circuit Court decision sweeps domestic workers under FLSA—and thereby formalizes the work of a sector that has been historically overlooked.

The Home Care Rule went back into effect on November 12, 2015. Between now and December 31, 2015, the DOL is adopting a relaxed enforcement policy. In a policy statement, the DOL said that it will “exercise prosecutorial discretion” during this period. When making decisions as to whether to bring enforcement actions, the DOL will consider the extent to which States and other entities have “made good faith efforts to bring their home care programs into compliance” with the Home Care ruling. DOL will commence more rigorous enforcement in 2016.

The ease-in period buys more time as home health organizations and hospitals make adjustments. A common source of complaint and frustration is funding. Institutions funded by payers like Medicare and Medicaid are still at a loss as to how they will accommodate the overtime pay mandates into their budgets. In the first industry-led report since the D.C. Circuit Court decision, several membership associations released a set of recommendations outlining potential next-steps for home health providers. The report cautioned states from reacting adversely, such as prohibiting all overtime hours. It also suggested that home health institutions work with state legislators to make more room in their state budgets for home health aide payments.

The D.C. Circuit Court decision is clearly a win for labor rights activities and domestic workers. But with budgetary challenges and a potential Supreme Court appeal on the line, whether and to what extent the Home Care rule will be enforced remain to be seen.

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Fracking Creates Pregnancy Risk

This October the Johns Hopkins Bloomberg School of Public Health released a study linking fracking to adverse pregnancy outcomes, specifically premature births. Fracking, also known as hydraulic fracturing, is the “process of pumping chemical-laced water into shale to extract the oil or gas embedded within.” Fracking is a stimulation process used to access natural gas located 5,000-8,000 feet below the surface that was previously unavailable.

The study found that living within the most active area of fracking (most active quartile of drilling and production) activity was associated with a 40% increase in a woman giving birth prematurely (preterm is considered to be before 37 weeks gestation) and a 30% increase that an obstetrician had labeled their pregnancy high-risk. Of the pregnancies in the study 11% of those resulted in a premature birth with 79% of those preterm births taking place between 32 and 36 weeks.

Premature birth is a serious public health problem because it increases the risk of death and serious disability for children who are born prematurely. Children born prematurely may suffer from numerous health complications including breathing problems, feeding difficulties, cerebral palsy, developmental delay, vision problems, and hearing impairment. Preterm birth is the greatest contributor to infant death and the leading cause of long-term neurological disabilities in children. In 2010, preterm-related deaths accounted for 35% of all infant deaths and in 2005 preterm births cost the U.S. healthcare system 26 billion dollars.

The practice of fracking is a controversial topic for many reasons including other public health dangers fracking might be related to and the potential long-term environmental impact it might have. Preliminary studies conducted on births in Pennsylvania report an increased risk for low birth weight, which can be a sign of developmental problems. A Yale University study found that people living near natural gas wells are more than twice as likely to have respiratory illnesses and skin problems. There is also preliminary research suggesting that fracking is related to water pollution.

Additionally, fracking is a public health concern because its use and prevalence has rapidly expanded in the United States when much is still unknown about the dangers and long-term effects. The process of fracking dates back as early as the 1940s, while large scale use did not occur until 2003. It was around 2003 that “energy companies began actively expanding natural gas exploration with an emphasis in shale formations in Texas, Pennsylvania, West Virginia, Wyoming, Utah and Maryland.” Specifically, the expansion was supported by an EPA study released in 2004 announcing that fracturing posed no risk to the underground water supply. Shortly afterwards in 2005, fracking was exempted from the Safe Water Drinking Act in the Energy Policy Act of 2005 by the Bush administration. Fracking began in just a couple of states, but the practice has rapidly expanded and is now used in over fifteen states.

Although this study is not definitive, it shows that there are some public health risks associated with fracking and that more studies are needed. It is also a sign that the fracking industry should proceed with caution. Because fracking has relatively recently gained widespread usage, much is still unknown about the environmental consequences and the public health dangers fracking might cause.

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