Shift plus on-call duty creates tired employees

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Barbara Harty-Golder, MD, JD

A Mandatory work outside generally accepted shift hours
is a complicated issue, controlled by both federal and state laws,
which, of course, vary. Federal law requires all non-exempt employees to
be paid time-and-a-half for any time over 40 hours worked in a single
workweek. The law does not impose any restrictions on the schedule that
must be worked; in theory, an employee could work 40 consecutive hours
and then no more the rest of the week and not be entitled
to overtime. The sum-total of time worked and the non-exempt status of
the individual working control the decision.

Before cell phones and pagers, an employee who was
required to take calls from home was entitled to pay, because being on
call generally meant being within arm’s reach of a landline phone. The
loss of personal freedom to the employer’s requirements entitled the
employee to be paid for that time. Today, with the availability of cell
phones, on-call time may not be subject to pay, straight or overtime.

On-call payment becomes an issue only when the
employee’s freedom is significantly restricted. If being on call means
that an employee may not sleep or travel about locally, must remain in
the place of employment or within a particular geographic range, or may
not drink a glass of wine with dinner, then the time may be subject to
pay — including overtime. Each determination is fact-specific, and the
more tightly an employee’s behavior is controlled while on call, the
more likely the entire on-call period will be subject to pay.

The situation described raises the issue of whether
an employee is permitted to sleep during a shift — not uncommon on long
shifts — and certainly not an unreasonable prospect here. Sleep time
during the shift is not exempt from pay, but this is generally subject
to mutual agreement by employer and employee beforehand.

Once a shift reaches 24 hours, however, eight of
those hours may be unpaid and provided for sleep. If work interrupts and
the employee has fewer than eight uninterrupted hours for sleep, he is
entitled to pay. An employee who has to travel back to work for on-call
emergencies is entitled to travel time, even if the job does not
ordinarily involve compensable travel.

If on-call duty means that an employee cannot get a
sufficient amount of sleep because of the frequency of calls — and being
on call is a condition of employment — the case could be made that he is
on a continuous shift, and that the employer created an unsafe working
environment. This situation would make the employee a foreseeable risk
to others, for which the employer is responsible. Quantifying the degree
of risk and the likelihood of liability depends on a number of factors:
Was the employee, in fact, on company time? Was it foreseeable that the
employee would be so impaired by lack of sleep that there was a risk?
Are there other significant factors the employer had neither knowledge
nor control of (such as alcohol use or personal issues that exacerbate
lack of sleep)?

The employer is responsible for the work done
by the employee, regardless of his condition, and is liable for
mistakes, whether intentional or negligent. Further, if an employer is
aware that an employee is too tired, sick, or otherwise impaired to
properly perform his job duties and permits him to work, the employer
may be seen as disregarding known risks. If so, the employer may be
considered reckless, opening the door to punitive damages in the event
of a successful lawsuit. In extreme cases, when risks to others or to
the employee himself are obvious, significant, and ignored, reckless
disregard of risk to others may even raise a question of possible
criminal neglect.

An employee with a medical condition that requires
rest time may have to be accommodated, even if the overall policy is
otherwise appropriate. An employee with underlying health issues may
require an uninterrupted period of sleep for medical reasons. If so, the
Americans with Disabilities Act may require accommodation and exempt the
employee from mandatory 12-hour night call.

Interestingly, the American Committee on Graduate
Medical Education calls for a limitation of resident work hours: not
more than 80 hours per week, never more than 24 consecutive hours, and a
mandatory 24 hours completely off work every week. Although this
standard has no direct application to staffing hospital labs, it is
indicative that the healthcare profession has become aware of the
problems of overworked, tired staff.

It behooves laboratory managers to find solutions to understaffing
that do not create additional legal or medical issues for the staff, the
institution, or the patients.

Barbara Harty-Golder is a pathologist-attorney
consultant in Chattanooga, TN. She maintains a law practice with a special
interest in medical law. She writes and lectures extensively on healthcare
law, risk management, and human resource management.

Shift plus on-call duty creates tired employees
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Barbara Harty-Golder
is a pathologist-attorney consultant in Chattanooga, TN. She maintains a law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management, and human resource management.

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