Distinguishing a licensed practical/vocational nurse from an exempt "personal attendant"

STATE OF CALIFORNIA PETE WILSON, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
45 Fremont Street, Suite 3220
San Francisco, CA 94105
(415) 975-2060

H. THOMAS CADELL, JR., Chief Counsel

October 21, 1997

Gwendolen S. Buck
Zerbe, Buck & Lewis
400 Camino El Estero
Monterey, CA 93940

Re: Practical Nurse v. Personal Attendants

Dear Ms. Buck:

This is intended to reply to your letter of October 3, 1997,
wherein you ask this office to provide authority which
distinguishes the nature and extent of the services or procedures
employed by a practical nurse from those of a personal attendant.

The term "personal attendant" is defined in the wage order:

"Personal attendant" includes baby sitters and means any
person employed by a private householder or by any third
party employer recognized in the health care industry to
work in a private household, to supervise, feed, or dress
a child or person who by reason of advanced age, physical
disability, or mental deficiency needs supervision. The
status of "personal attendant" shall apply when no
significant amount of work other than the foregoing is
required.

The term "practical nurse" has long been used by the Division
in conjunction with its enforcement of the IWC Orders and has a
recognized meaning as a "vocational nurse". (See B&P Code § 2872.1)
The qualifications of a vocational or practical nurse are provided
in B&P Code §§ 2866 and 2873. This is a licensed occupation and
the individual is allowed, under the direction of a physician and
surgeon to perform all of the intrusive procedures listed in B&P
Code §§ 2860.5 and 2860.7. The Legislature has recognized that
some "nursing" may be handled by unlicensed individuals; indeed,
B&P Code § 2727 allows "incidental care of the sick by domestic
servants or by persons primarily employed as housekeepers as long
as they do not practice nursing within the meaning of this chapter.
This would preclude use of intrusive procedures.

Gwendolen S. Buck
October 21, 1997
Page 2

A personal attendant, on the other hand, if employed to care
for a child, is referred to as a "babysitter". We believe that
the use of the term "baby sitter" was intended to indicate the
proposed scope of the work which the Commission thought was
encompassed within the definition. Indeed, the IWC in the
Statement of Basis for Order 15-86, stated that they had retained
the language "when no significant amount of work other than the
foregoing (i.e., "supervise, feed or dress") is required", so that
the definition of personal attendant could not be construed to
apply to other classifications of employees working in households.
Had the Commission intended that the activities of the personal
attendant were to include those of a nurse, they could have easily
incorporated the word "nurse" into the definitional language.

Denominating an individual as a personal attendant has the
effect, of course, of making that employee ineligible for the
protections of the IWC Order. Order 5-89 exempts "personal
attendants" employed by non-profit organizations from the 8-hour
and 40-hour restrictions. Inasmuch as the IWC in the Statement of
Basis for Order 5-89 also reached the conclusion that it would be
inappropriate to add nurses to the exempt "professional" status
since nurses needed the protections offered by the wage orders, it
is hardly conceivable that they intended that nurses should be
exempt as "personal attendants".

In conclusion, the Division would suggest that the distinction
between the services or procedures performed by a practical (or
vocational) nurse and those performed by a personal attendant is
easily drawn: the personal attendant is employed only to supervise,
feed and dress the individual and may not engage in those
procedures which are exclusively limited to the nursing profession.
The nurse is primarily employed to supervise the individual in
regard to their health needs and is allowed to perform the services
and procedures provided in their license.

Yours truly,

H. THOMAS CADELL, JR.
Chief Counsel

c.c. Jose Millan, State Labor Commissioner
Nance Steffen, Assistant Labor Commissioner
Greg Rupp, Assistant Labor Commissioner
Tom Grogan, Assistant Labor Commissioner