If an employee does get to do work on behalf of the company while on-call, it’s clear that his or her employer, in order to comply with the Affordable Care Act, must credit those hours and track that time toward their eligibility for health insurance.
The challenge comes in when an employer has to credit hours even when there is no special circumstance that requires the employee to do any work while on-call.
The rule is that if being on-call substantially restricts an employee’s ability to use their time for their own purposes, an employer may have to credit them with hours of service even though they may not be called up during the time they are on-call.
To see how this restriction can apply, let’s look at two scenarios of employees who agree to be on-call during the weekend.
In the first scenario, the employee is a software technician who has a laptop and communications access.
- If called up to perform technical support services during the off hours, this employee is required to log into the customer’s site and provide those services.
- During the weekend, this employee is not called upon.
- They had no restrictions on their movements and ability to use their time as they wanted.
- No hours of service need to be credited to them.
In the second scenario, the employee is an electrician who is on-call during the weekend should they be needed by a production facility.
- A provision for their on-call pay is that, if a problem arises, they must arrive at the plant within 1 hour.
- The employee’s ability to use their time for their own purposes is therefore restricted: They cannot travel outside a specific radius.
- The employer must use a reasonable method of compensating them with hours of service even though they did not actual work any hours. (Guidelines suggest using an 8-hour day or the average number of hours the employee is credited with during usual business hours.)
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