A. The illustrations in this regulation provide guidance for the home health care industry in the application of Labor and Employment Article, §8-205, Annotated Code of Maryland and do not apply to any other State or federal labor law.
B. Illustration 1.
(1) Extra Loving Care (“ELC”) is a Nursing Referral Service Agency (“NRSA”) licensed by the Maryland Department of Health (“MDH”) pursuant to COMAR 10.07.07. It has a registry of certified nursing assistants (“CNAs”), geriatric nursing assistants (“GNAs”) and licensed practical nurses (“LPNs”). The company verifies that all workers do not have a criminal background and are properly licensed before placing them on the registry.
(2) Before placing a worker on its registry, ELC requires that the worker attend mandatory training and receive a list of rules and policies to follow in clients’ homes. ELC assigns available workers on its registry to clients. ELC sets the workers’ schedules and requires documentation of the work performed, such as time sheets or notes.
(3) ELC determines the workers’ rates of pay and the workers cannot negotiate pay rates directly with ELC’s clients. Clients pay ELC and ELC deducts its fee and pays the workers. If a client is dissatisfied with a worker, the client contacts ELC directly. Each worker must sign an agreement with ELC that restricts his or her ability to enter into employment agreements with ELC’s clients, past or present.
(4) The workers on ELC’s registry are employees of ELC.
C. Illustration 2.
(2) LC provides its clients with the names and contact information for available workers on its registry. Once contacted, a worker may then set and adjust their work hours and may negotiate their rates of pay directly with the client, unless otherwise established by a third party payor. The workers on LC’s registry, in conjunction with the client, determine the client’s needs and use their own tools and equipment to carry out their services. Workers are not required to report hours to LC, although some workers maintain notes for their own records.
(3) Workers on LC’s registry carry their own workers’ compensation insurance and/or professional liability insurance coverage. Workers have their own independent businesses that are demonstrated by Federal Employer Identification Numbers (“FEINs”), tax returns, business cards, invoices, advertising and/or other indicia of operating an independently established business. Workers are responsible for maintaining necessary licensures and certifications, however, LC performs periodic credential checks to confirm that workers’ licenses and certifications are current.
(4) The workers on LC’s registry invoice clients directly and are paid directly by the client. The workers are then responsible for remitting any referral fee directly to LC. LC only deviates from this payment system in limited circumstances when an alternative method of payment is necessitated by a third party payor or other legal arrangement established for the benefit of the care recipient. If dissatisfied with a worker, the client informs the worker directly. The workers are not bound by a non-solicitation provision.
(5) The workers on LC’s registry are independent contractors.