Today we have a guest post from my colleague Charlie Domer of Wisconsin.
A growing segment of the workforce involves individuals providing in-home medical care and assistance to private individuals. The assistance can range from a few hours per day, to 24/7 medical and domestic care for incapacitated individuals.
If the in-home care provider gets hurt while performing work duties, does this entitle the care provider to worker’s compensation benefits?
“Home care providers” are treated differently from nannies, baby-sitters and domestic servants (though an argument could be made that the care recipients from a nanny or from an in-home care provider are equally dependent — a baby and an elderly individual often have similar needs). The Commission held that persons providing personal/medical care to an “invalid” are not domestic servants (and thus, not statutorily exempt from the Act’s coverage). (Ambrose v. Harley Vandeveer Family Trust, WC Claim No. 86-39393 (LIRC Feb. 28, 1989); Winkler v. Vivian Smith, WC. Claim No. 1998059089 (LIRC Jun 29, 2000))
The Department generally considers that persons hired in a private home to give primary care to an individual whose duties involve assisting in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, meet the definition of home-care provider.
If the domestic servant exemption does not apply, the question is: are home care providers to be considered as employees of the cared-for individual?
Interestingly, another statutory exception which may apply involves that of the cared-for individuals enterprise, as the person providing personal/medical care does not perform these services as part of the trade, business, occupation or profession of the cared-for individual (102.07(4)(a)2). Since the cared-for individual is not in the business of providing in-home care, there would be no worker’s compensation coverage, unless the cared-for individual elects to award these. Thus, the Department, based on this statutory exception, suggests that no employer-employee relationship exists under the Act.
As the Commission has left this issue largely undecided in the case of a private cared-for individual hiring their care provider, arguments exist both for and against coverage. Alternatively, if a county referred the home care provider to the individual and the county set the provider’s rate of pay, the county is the employer for worker’s compensation purposes. (See Cobb v. County of Barron, WC Claim No. 2006-043003 (LIRC Dec. 11, 2008); Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 1996)).