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.