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An employer of even one person is subject to certain federal and state statutes¹. Applicable Texas statutes include Texas Family Code Section 234.1011, Texas Labor Code Section 61.001(4), and the Texas Unemployment Compensation Act. What should a caregiver employer do when hiring a family caregiver?

Protections for Family Caregivers

The hired family caregiver, even if only working part-time, has the same minimum wage and overtime protections as any other employee. The U.S. Department of Labor’s Home Health Care Final Rule allows three exceptions, one or more of which may apply. The first is for a companion, someone who spends less than 20% of her time assisting with personal care, who does not perform medically-related tasks and who does not perform household tasks mostly for other members of the household. This might be a teenager who comes by to read or play chess or take someone for a daily outing in a wheelchair. The second exception is for a family member who works beyond the 40 hours per week specified in a written contract, a family caregiving agreement. The third applies to someone who lives in and has no other home or who spends 120 hours or five consecutive nights per week in the home of the person being cared for.

Certain routine steps must be taken. Some people prefer to outsource some of these and ongoing payment to ADP, Paychex, TEAM, homeworksolutions, or a similar company.

11 Crucial Steps a Caregiver Employer Must Take When Hiring a Family Caregiver

  1. An I-9 must be completed and records kept showing that the family member is eligible to work in the United States pursuant to the Immigration and Reform Control Act of 1986². This is easiest done using E-Verify. People authorized to work in the United States are citizens, lawful permanent residents, lawful temporary residents, citizens of Micronesia and the Marshall Islands, aliens granted suspension of deportation, aliens granted extended voluntary departure as members of certain nationality groups by request of the Secretary of State and, for a specified period, aliens paroled into the United States as refugees or granted asylum or admitted as nonimmigrant fiancees/fiances. The form required, I-9, and instructions on completing it are attached and can be found at www.uscis.gov/i-9 and “How Do I complete Form I-9, Employment Eligibility Verification?
  2. Form W-4 must be completed.
  3. Notice of the new hire must be submitted within 20 days to www.employer.oag.texas.gov/employerportal/s/.
  4. The employee must be notified of the Health Care Marketplace www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/faqs/notice-of-coverage-options.
  5. The employee must be given notice of coverage or non-coverage under Texas Worker’s Compensation laws.
  6. Health and disability insurance should seriously be considered.
  7. A potential employee’s consent must be obtained for a credit or criminal background check, drug test or video surveillance.
  8. If the employer is not calculating and forwarding payroll deductions, the employee must be enrolled with a service such as Paychex, ADP or Austin-based Home Work Solutions www.homeworksolutions.com.
  9. If funds will be sought from a third party, documentation and an ongoing process for this must be created.
  10. The home-owner’s insurance policy may need to be added to or a separate property liability insurance policy purchased.
  11. An agreement must be reached about pay, benefits, schedule, respite, etc. with employment-at-will disclosures and ways to amend the agreement as conditions change.

 

Additional Resources for Family Caregivers:
Programs Assisting Family Caregivers
Resources for Family Caregivers of Elders and Seniors
How Family Members can Help the Caregiver
Paying the Family Caregiver Now
Paying the Family Caregiver Later

¹ At the federal level these are the Fair Credit Reporting Act 15 U.S.C. 1681, 84 Stat 1114-2 a/k/a 84 Stat. 1127 effective October 26, 1970; Section 1981 of the Civil Rights Act of 1866, 14 Stat. 27-30, April 9, 1866, ratified 1870; the Uniform Services Employment and Re-employment Rights Act 38 U.S.C 4301-4335, Pub. L. 103-353, effective October 13, 1994; the Immigration and Reform Control Act of 1986, 8 U.S.C. 1101 et al., 100 Stat. 3359 effective November 6, 1986; the Occupational Safety and Health Act 29 U.S.C. Ch. 15, Section 651 et seq., 84 Stat. 1590, December 29, 1970; Personal Responsibility and Work Opportunity Reconciliation Act 42 USC 653a, Pub. L. 103-192, 110 Stat. 2105, enacted August 22, 1996; Federal Unemployment Tax Act (FUTA) 26 USC 3306 (Internal Revenue Code Chapter 23).
² 8 U.S.C.S. § 1101; 99 P.L. 603, 100 Stat. 3359; 8 C.F.R. 274a; 28 C.F.R. 44.

 

Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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