Home Health Aide – Employee or Independent Contractor?

It’s a conversation we have with most of our clients at some point when guiding them through what we call the elder care journey.  Mom wants to stay at home but needs assistance with some of what are known as the activities of daily living – eating, bathing, dressing, walking and toileting.

We recommend to our clients that they hire a home health agency for a variety of reasons which I have written about in previous blog posts.  That aide is going to be coming into Mom’s home.  The agency does background checks before hiring.  Proof of spend down for Medicaid isn’t an issue when hiring an agency.  The contract and payment to the agency is all that needs to be shown, unlike the cash payments that families often make when hiring an undocumented aide.

There is another concern we discuss with clients and their families, but which they then generally push aside, and that is the question whether the aide they hire is an employee or an independent contractor.

In many cases the line between the two is easy to draw.  For example, the contractor you hire to do work on your home is not your employee.  He is hired to do a specific job, controls the manner in which he does it and upon completion he is paid.  Similarly, most professionals such as doctors, lawyers and architects are paid the same way.

The question is more difficult to answer, however, when we consider someone who comes into your home regularly to perform a service.  For example, a landscaper who cuts your lawn or the person that come to clean your home every week will generally be treated as an independent contractor.

What are the commonalities to an independent contractor?  If only the worker can control how the work is done, the worker provides his or her own tools and offers his or her services to the general public as an independent business, then it is clear that he is treated as an independent contractor.

The line becomes more blurred, however, when we consider the aide hired to provide care for Mom.  Does the aide work for more than one person at time?  Is the aide a live in?  Who controls the manner in which the work is performed?  And what laws might a family be concerned with if the aide is considered an employee?  We’ll discuss all that next week.