Gig workers in senior housing: Be wary of how it affects your insurance programs

The senior housing industry has traditionally lagged when it comes to adopting new technology. For third-party staffing, the gig economy is increasingly replacing traditional staffing agencies to fill the talent void.

As the aging population grows, there is a pressing need to explore innovative solutions to enhance staffing and the quality of life for seniors.

There are many benefits of using gig workers in senior housing, including:

1. Flexibility and on-demand services: Gig workers provide flexibility and on-demand services that can cater to the diverse needs of seniors. From housekeeping and meal preparation to care, companionship and transportation, gig workers offer a range of services tailored to individual preferences and requirements. This flexibility allows seniors to receive the assistance they need when they need it, promoting independence and autonomy.
2. Cost-effectiveness: Hiring gig workers can be a cost-effective solution for senior housing providers. Traditional employment models often come with fixed costs, including benefits and taxes. Gig workers, on the other hand, operate as independent contractors, reducing the financial burden on senior housing facilities. This cost-effectiveness can translate into more affordable senior housing options for residents. However, the up-front cost-effectiveness can be dramatically diminished by hidden costs should the worker suffer an injury or be deemed an employee by the IRS, the Department of Labor, or an employment lawsuit.
3. Diverse skill sets: The gig economy attracts individuals with diverse skill sets and expertise. This diversity can be an asset in senior housing, where residents may have varying needs and preferences. Gig workers with specialized skills, such as yoga instructors, art therapists, or tech-savvy companions or actual caregivers, can contribute to creating a vibrant and engaging community for seniors.

Despite these benefits, senior housing providers continue to encounter challenges in their efforts to utilize them. These challenges include:

1. Lack of continuity in care: One of the challenges associated with gig workers in senior housing is the potential lack of continuity in care. Seniors often benefit from consistent and familiar faces, fostering a sense of trust and comfort. Gig workers, who may take on multiple assignments simultaneously, might struggle to provide the continuity of care that seniors require.
2. Ensuring resident safety: The wellbeing of seniors is paramount, and ensuring the safety of residents is a critical consideration. Senior housing providers must implement robust screening processes and background checks to vet gig workers thoroughly. This is crucial to safeguard against potential risks and maintain a secure environment for seniors. Failure to do this can lead to professional liability claims by a resident.
3. Regulation and accountability: The gig economy operates with a degree of autonomy that can sometimes lead to limited regulation and accountability. Senior housing providers need to establish clear guidelines and expectations for gig workers, ensuring that they adhere to the standards of care and professionalism required in a senior living community. This requires a short training session with any gig worker to help ensure compliance with a community’s policies, procedures and expectations.

Navigating operational risks and unexpected costs

Many referral companies have taken this market on. The main differentiator is whether they treat gig workers as W-2 employees or 1099 independent contractors. Many senior living operators do not see a difference—an inaccurate conclusion that would expose the operator to unexpected liabilities.

Referral companies with W-2 employees provide benefits, supervision, control and workers’ compensation insurance. If such an employee is injured while working at a senior housing provider’s property, a workers’ compensation claim would be filed with no dispute on the applicable policy. However, if the referral company doesn’t supervise the worker, the community might be considered a co-employer or even the employer.

Dealing with companies that provide 1099 workers adds complexity. These independent contractors usually lack workers’ compensation coverage from referral companies. Some may have accident/disability policies, but these are weaker than workers’ comp benefits. If an injured worker argues they were an employee due to the operator’s control over their work, it poses operational risks and potential IRS claims for back payroll taxes.

Related: Here’s how to understand and help gig workers

Additionally, using companies with 1099 workers may lead to additional premium charges, as wages paid to these workers could be considered the operator’s payroll during policy audits. If a workers’ compensation carrier denies coverage and the worker’s accident policy is insufficient, they may file a tort claim against the operator, raising coverage issues under general/professional liability policies.

The gig economy is alive and well in the senior living industry. There are many significant questions to evaluate and challenges to consider when engaging referral workers and independent contractors. Financially, such challenges include the potential for unintended workers’ compensation charges and costs, employment liability claims, and claims by the DOL and IRS for misclassified workers. Awareness and proactive consideration of these challenges can lead to better outcomes for senior housing providers, fostering more resilient and compliant operations within the industry.

Mark Holt, senior vice president, risk management, CAC Specialty