Do On-Call Hours Count Toward the 30-Hour per Week ACA Requirement?

Employers should be careful with this issue and it will depend on how the on-call time is structured.  Remember, the ACA requires you to count “hours of service” toward the ACA 30 hour requirement.  Hours of service goes well beyond simple “hours worked.”  To determine if on-call time should be counted toward the 30-hour requirement, there are several things that must be considered.  Is it paid-at-regular-rate on-call time? Is it on-call time paid at some discounted rate?  Is the employee required to be on-site?  The preamble to the final employer mandate rule states:

The Treasury Department and the IRS continue to consider additional rules for determining hours of service for purposes of section 4980H with respect to certain work arrangements, including on-call hours, or categories of employees whose hours of service are particularly challenging to identify or track or for whom the final regulations’ general rules for determining hours of service may present special difficulties. Until further guidance is issued, employers of employees who have on-call hours are required to use a reasonable method for crediting hours of service that is consistent with section 4980H. It is not reasonable for an employer to fail to credit an employee with an hour of service for any on-call hour for which payment is made or due by the employer, for which the employee is required to remain on-call on the employer’s premises, or for which the employee’s activities while remaining on-call are subject to substantial restrictions that prevent the employee from using the time effectively for the employee’s own purposes.

Certainly it is clear that if employees are paid at their standard rate for on-call hours, these hours should be counted as hours of service. It remains unclear, however, how to treat circumstances where employees receive other minimal compensation for on-call time but are not called to work or substantially restricted.  It seems clear that if the employee is not paid for on-call time and is free of “substantial restrictions that prevent the employee from using the time effectively for the employee’s own purposes” then those hours would not count toward the 30-hour requirement.

Don’t Let the Bed Bugs Bite Your Business: Add a Bed Bug Policy to Your Handbook.

Bedbugs have been an increasing problem for families and businesses.  For instance, in June 2012, the Detroit News ran a front page article entitled “Detroit Bus Drivers Seek Bedbug Relief.”  According to the article, bus drivers were complaining of bed bugs on the buses and seeking employer intervention.  According to the Michigan bed bug registry, these tiny pests have been reported throughout the Detroit area as well as in Ann Arbor, Lansing, Flint, Grand Rapids, Traverse City, Kalamazoo, and other populated areas of Michigan.  Walk into any Home Depot or Lowes and you can now find shelves full of bedbug treatments and sprays.  In short, bedbugs are a major problem.

This author has received numerous questions about bedbugs in the workplace, including a panicked call from a client in the furniture business.  A warehouse employee had reported bed bugs in her apartment and claimed that she had been bitten.  The client wanted to know what steps could be taken to keep her out of the warehouse given that a bedbug-infested furniture warehouse may not be the best business model.  The client had no bed bug policy and no precedent to guide him.

The details of the background of bedbugs and bed bug remediation are beyond the scope of this article.  For those interested, the State of Michigan has a website dedicated to bed bugs that can be accessed online (Google “bed bugs State of Michigan” to find the website).  

For employers, bedbugs can be a very serious problem.  Imagine, for instance, that an employee in hospital, nursing home, or home health setting reports a bed bug infestation in his or her home or body.  This could include direct care givers or laundry workers who may be spreading bed bugs to patients.

The potential for a bed bug infestation from any one of these employees is tremendous and can be damaging to a business.  But, what can an employer do?  One option is to establish an employment policy that sets forth expectations for an employee who may be carrying bed bugs to work.

In crafting a bed bug policy, an employer must answer several questions:

1.    How does the company plan to prevent bed bug infestations?  For instance, will the company conduct on-site inspections of work areas (if allowable under an applicable collective bargaining agreement) or will the employer rely on reports of bed bugs in the work place from other employees or customers?

2.    Will employees have a duty to report bed bugs seen in the workplace?

3.    Will your policy require employees to report bed bug infestations or bites from home?

4.    What is the employer’s plan if an employee does have an infestation?  Will the employee be granted leave to avoid the risk of spreading bed bugs in the work place?  Will the leave be paid or covered by sick time?

5.    Will the employer pay for an employee’s extermination costs at home or require the employee to fix the problem and trust that it is done competently?

How these questions are answered will depend on the employer’s industry and the severity of a potential bed bug threat.  We recommend, at a minimum, requiring employee’s to disclose bed bugs spotted in the workplace and any bed bugs at home.  Failure to so report could lead to discipline up to and including termination.  Employers should also reserve the right to conduct inspections of the work place where possible.

There is, of course, the potential for liability from employee bed bug issues regardless of how well crafted a bed bug policy may be.  For instance, there are OSHA concerns where there is a workplace bed bug outbreak.  While OSHA regulations do not specifically mention bed bugs, the general duty clause states that “every closed workplace shall be so constructed and maintained to prevent the entrance of vermin . .  . .”  Thus, bed bugs could lead to a host of problems under OSHA and its attendant record keeping and reporting requirements.  We recently defended a MIOSHA claim of retaliation for reporting bed bugs in a nursing home.  While it turned out to be a false report, the government investigated the claim nonetheless before dismissing the charge.

Likewise, there could be whistleblower lawsuits for employees who report or threaten to report a bed bug issue.  Workers’ compensation could also be implicated if any employee claims an illness based on a workplace-related bed bug bite. 

There can also be a potential for discrimination claims.  Any bed bug policy should be crafted to avoid having a disparate impact on certain protected classifications.   Bed bugs are often found in low income areas but can strike anywhere.  Employers should not single out any one group for bed bug inspections or other action. 

Finally, employers must be aware of common law negligence claims.  If any employer is aware of workplace bed bugs and takes no action, the employer could face a negligence lawsuit from employees who become infested.  

Given the potential for disruption of business and possible liability, health care employers should have an employee bed bug policy.  Employers should consult legal counsel before implementing such a policy and before taking any adverse employment actions against an employee who has a bed bug infestation.

By Brett J. Miller