Occupational Therapy Assistants Are Hourly Employees

Many families employ Certified Occupational Therapy Assistants (COTA) in their home to provide rehabilitative services to a family member with mental, physical, emotional, or developmental impairments. An occupational therapy assistant helps clients with rehabilitative activities and exercises from treatment plans developed by an occupational therapist. A recent opinion letter from the US Department of Labor confirms that occupational therapy assistants paid directly by the family must be compensated on an hourly wage basis and are subject to overtime per the FLSA, the same protections enjoyed by nannies. A family has no responsibility, of course, for the compensation and payroll tax arrangements of a COTA who is paid by a third party even though the COTA provides services in the family home.

An employer of occupational therapy assistants sought to treat these employees as Exempt from the FLSA Section 13(a)(1), the overtime requirements of the Fair Labor Standards Act. Section 13(a)(1) of FLSA exempts from the act's minimum wage and overtime provisions an employee compensated on a salary basis at a rate not less than $455 per week and whose "primary duty" is the performance of work "requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction." The DOL opinion letter cited several previous rulings that "Occupations that require only a four-year degree in any field or a two-year degree as a standard prerequisite for entrance into the field . . . do not qualify for the learned professional exemption."