Legal Issues When Hiring a Non-Clinical, Licensed Home Healthcare Worker

There are many options for hiring home healthcare workers, including going through an agency, using a referral service (online or otherwise), or hiring privately. There are a myriad of potential legal issues to be aware of regardless of the hiring method you choose. 

When a home healthcare worker is hired through an agency, the worker is employed by the agency. In that case, the worker is paid by the agency and the family pays the agency, so the agency is responsible for paying the taxes associated with that worker. When hiring privately or through a registry, however, the healthcare worker is paid directly by the family, who may then be responsible for the related taxes, including Social Security, unemployment, and payroll taxes, as the worker’s employer. 

Home health aides often represent themselves as independent contractors that pay their own taxes, but it is the responsibility of the person hiring them to ensure that the home health aide legally qualifies as an independent contractor and pays his/her own taxes. The consequences for failing to do so can be costly and include interest on back taxes, fines, and other penalties. In that regard, when hiring a home healthcare worker as an independent contractor, it is a good idea to have a written agreement signed by both parties that sets forth the terms of employment and specifies that the worker understands that he or she is an independent contractor responsible for Social Security payments, insurance, taxes, etc. (For more on this issue, see our post on what to include in an independent contractor agreement).

Workplace injuries for home healthcare workers are relatively common, particularly if the work includes lifting, transferring, and/or bathing. Generally, an agency will have workers’ compensation insurance to cover the healthcare worker for any injuries that occur while the healthcare worker is in the home. However, if the healthcare worker is hired privately or through a registry, and the family pays the healthcare worker directly, there is usually no workers’ compensation insurance to cover the healthcare worker if they are injured in the home. This may leave whoever hired the worker liable for costs associated with an injury to the healthcare worker, including medical expenses and disability payments. So if you plan to hire a home healthcare worker directly, make sure that the worker has his or her own workers’ compensation policy and/or get a workers’ compensation policy to cover that worker. 

In addition to workers compensation insurance, an agency will most likely carry general liability and malpractice insurance that will cover their employees in the event they cause injury to others. But, when hired privately, whoever hired the worker may be liable for accidents or injuries that occur because of the healthcare worker’s negligence on the property. So again, if you plan to hire a home healthcare worker directly, make sure that the worker has his or her own insurance and/or obtain the appropriate general liability and malpractice insurance. 

Agencies that employ healthcare workers bear the responsibility for their workers, and usually conduct criminal and other background checks before employing a healthcare worker. If the healthcare worker commits a crime, such as mistreating or abusing an individual being cared for, the agency can be held responsible for any resulting fall-out, including civil liability.

Although some registries may also conduct criminal background checks, they typically do not bear responsibility for the worker’s actions, since they are not the employer. The registry agreement should indicate whether the registry conducts these checks and whether they will assume the responsibility for the bad behavior of the worker – most will not.

When hiring privately or through a registry that does not assume responsibility for the worker’s conduct, the person hiring the worker assumes the risk of criminal behavior, and, once again, may have no practical recourse against a healthcare worker for damages caused by that worker. For those that hire privately or through a registry it is typically worth conducting a private criminal or background check on any healthcare worker who might come into the home.
Hiring a home healthcare worker can be great for the loved one requiring care, but is also fraught with a myriad of legal pitfalls. To help navigate these pitfalls, a lawyer should be consulted.