Staff Recommendation Hours Worked Under the Fair Labor Standards Act (FLSA)

SESCO Management Consultants

This fact sheet provides general information concerning what constitutes compensable time under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.

Definition of "Employ"

By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace. "Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

Application of Principles

Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."

On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one-day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day's Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

Typical Problems

Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

WHAT IS NEW AND WHAT HAS CHANGED IN HR

FMLA leave. The U.S. Department of Labor (DOL) has issued a new opinion letter pertaining to the Family and Medical Leave Act (FMLA). According to the guidance, an eligible employee with a serious health condition that necessitates limited hours may use FMLA leave to work a reduced number of hours per day (or week) for an indefinite period of time as long as the employee does not exhaust his or her FMLA leave entitlement.

Sexual harassment. Under the federal Speak Out Act, which was enacted in December, pre-dispute nondisclosure clauses and non-disparagement clauses relating to sexual assault or sexual harassment are no longer judicially enforceable where the conduct is alleged to have violated federal, tribal, or state law. States and localities may continue to enforce state-law provisions if they are at least as protective of an individual's right to speak freely.

Workplace romances. While Valentine’s Day is over, love is still in the air at many workplaces. More than one-fourth (27 percent) of U.S. workers are currently involved in a workplace romance or have been in one before, according to a new survey from the Society for Human Resource Management (SHRM). Most (79 percent) have dated their peers; 10 percent have dated their subordinates; and 18 percent have dated their superiors. Notably, nearly three-fourths of workers said their employer does not require them to disclose their involvement in a workplace romance.

Telework. The DOL has issued Field Assistance Bulletin 2023-1, which covers telework under the Fair Labor Standards Act (FLSA) and the FMLA. According to the bulletin, employees who work from home, telework, or work away from premises managed or controlled by the employer remain equally covered by the protections of these two laws. For example, they are equally entitled to compensation for all hours worked and short rest periods of 20 minutes or less, as well as break time to express breast milk under the FLSA. Additionally, employees who telework from home consistently or in combination with working at another or various worksites are equally entitled to have all hours worked counted for purposes of determining their eligibility for leave under the FMLA.

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Do I Stay in Contact After the Death?

By Barbara Karnes

Dear Barbara, Working in hospice, I always had a terrible time with --  do I stay in contact with the family after the death?

I think staying in contact with a family after the death is a personal practice and option. Most of the time there is another patient and family admitted to our full schedule and we get caught up in "there aren't enough hours in the day" living. 

I do think it is healthy for us to attend the visitation of our patient. It brings us closure and is appreciated by the family. The visit is our way of paying respect to the patient and family. It is also our final goodbye.

I personally discovered years ago that I needed some sort of closure ritual for myself when a patient I worked with died. For me, attending the visitation gave me contact with the family and offered me that final goodbye—that was my closure ritual.

As a hospice team most of us sign a sympathy card that is sent to the grieving family. For the primary care nurse or social worker or any staff member that has had direct contact on numerous occasions with the patient and/or family, I recommend sending a personal card or note to the family in addition to the team card. We in health care enter a family's life at a challenging, sad and fearful time. It is our acts of thoughtfulness that will be remembered and provide comfort.

All that said, I want to give you something to think about: We do not get emotionally involved with most of the patients and families we provide care for. We do not develop relationships that we want to continue after our work is done. Every so often a person and family will enter our personal space, fill some void we have within ourselves. For that person we will grieve. For that person we may want further contact.  

If all the patients and families got that deep inside our hearts we would not be able to continue our work. Our heart, our mind, and our life would carry too much grief. We would not be able to be objective. It would not be healthy for us to stay in end of life work.

Something More about...  Do I Stay In Contact After the Death?

Agencies (and end of life doulas) use my booklet, My Friend, I Care; The Grief Experience as their sympathy "card". The team signs the front page of the booklet and provides the family with a support tool and comfort for the bereaved.

Here is another article that give suggestions on further support for families- The Reluctance to Attend Bereavement Support Groups.

Preferred Provider Arrangements Between Home Health, Hospice and Private Duty Agencies, and Assisted Living Facilities and Retirement Communities

Managers at assisted living facilities (ALF's) and retirement communities are often committed to keeping residents in their facilities for as long as possible. There are, of course, costs associated with filling vacancies. In addition, if residences remain empty for any length of time, then the profitability can be severely adversely affected.

Consequently, to the extent that agencies can assist residents to remain in their homes, ALF's and retirement communities may be extremely interested in establishing ongoing relationships with these types of providers. ALF's and retirement communities can be valuable referral sources for companies, both in terms of the volume of patients and the types of patients referred.

Relationships with ALFs and retirement communities may be especially helpful to private duty or home care agencies in order to “fill the gaps” in care provided by other types of providers of services in patients’ homes.

Management at ALF's and retirement communities may wish to make referrals to a single company or limit referrals to a few providers. The perception among managers of these types of facilities, whether true or not, seems to be that providers are more likely to assist them in meeting the goal of limiting resident turnover if they have preferred provider relationships with them. 

The COVID-19 pandemic may have enhanced the desire to deal with a limited number of providers in order to gain some control over the number of caregivers in communities.

Providers may wish, therefore, to approach ALF's and retirement communities to see if they are interested in these types of arrangements. If they are, management of ALF's and retirement communities may be interested in signing a Preferred Provider Agreement in order to cement relationships with providers.

Preferred Provider Agreements must generally comply with requirements of the federal anti-kickback statute (AKS).

Providers may not understand that this statute is applicable to them even though they are not Medicare-certified and do not receive payments from the Medicare Program. If providers, ALF's, or retirement communities involved in referral arrangements receive any type of federal or state funds, including, but not limited to, payment for services provided from Medicaid waiver programs, managed Medicaid programs, the Tri-Care Program, VA or any other state or federal programs, then the anti-kickback statute may apply. 

The anti-kickback statute generally says that anyone who either offers to give or actually gives anyone anything in order to induce referrals has engaged in criminal conduct. There are, however, several exceptions to this statute that may be applicable. 

Providers must ask two crucial questions regarding the application of the anti-kickback statute to referral arrangements:

1. Is there a kickback?
2. If so, is there an exception or "safe harbor" that permits the arrangement, even though it would otherwise violate the statute?

A kickback or rebate occurs when a provider receives referrals from another provider and something flows back from the provider who received referrals to the referral source. If there is a kickback or rebate, providers must automatically ask the second question listed above. If they fail to utilize applicable exceptions, they could miss out on useful marketing strategies that are likely to result in numerous referrals.

Regarding Preferred Provider Agreements, however, it is important to note that no money or anything of value should change hands between providers and the other party involved in these types of agreements. Thus, there is no kickback.  

Providers can, therefore, enter into Preferred Provider Agreements and avoid violations of the anti-kickback statute so long as no money or anything else of value is given to ALF's and retirement communities in exchange for referrals.

This prohibition includes free services. ALF's may, for example, have to provide inservice education programs or conduct quality assurance (QA) programs in order to maintain licensure. If providers make these services available free of charge, they may have rendered free services in exchange for referrals. 

From a practical point of view, a good rule of thumb to use when evaluating whether activities may constitute free services is to ask whether ALF's or retirement communities would have to expend their own resources to provide these services if they were not provided by companies who receive referrals. If the answer to this question is "yes," then they may constitute impermissible kickbacks.

The parties to Preferred Provider Agreements must also make certain that they honor patients’ choices of providers.

Additional key provisions of Preferred Provider Agreements may include:

• A list of services that providers can render to residents of ALF's and retirement communities
• Representations and warranties of both parties that they have all required licenses, certifications, etc. to conduct business and have not been suspended or excluded from participation in federal and state health care programs, if applicable
• Requirements for both parties to maintain certain types and amounts of liability insurances
• Agreements regarding indemnification of each party for the acts and omissions of the other, if appropriate

The market for home care services is rapidly expanding, but the competition for referrals among providers remains extremely fierce. Providers are well-advised to utilize Preferred Provider Agreements to assist them to increase and/or maintain referrals in order to help ensure profitability.

©2023 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.

Organ Damage for 59% of Patients with Long COVID Continues a Year After Initial Symptoms

By SAGE Publications

A new comprehensive study of organ impairment in long COVID patients over 12 months shows organ damage persisted in 59% of patients a year after initial symptoms, even in those not severely affected when first diagnosed with the virus.

The study, published in the Journal of the Royal Society of Medicine, focused on patients reporting extreme breathlessness, cognitive dysfunction and poor health-related quality of life. 536 long COVID patients were included in the study. 13% were hospitalized when first diagnosed with COVID-19. 32% of people taking part in the study were healthcare workers.

Of the 536 patients, 331 (62%) were identified with organ impairment six months after their initial diagnosis. These patients were followed up six months later with a 40-minute multi-organ MRI scan (Perspectum's CoverScan), analyzed in Oxford.

The findings confirmed that 29% of patients with long COVID had multi-organ impairment, with persistent symptoms and reduced function at six and twelve months. 59% of long COVID patients had single organ impairment 12 months after initial diagnosis.

A member of the research group, Professor Amitava Banerjee, Professor of Clinical Data Science at the UCL Institute of Health Informatics, said, "Symptoms were common at six and twelve months and associated with female gender, younger age and single organ impairment."

The study reported a reduction in symptoms between six and 12 months (extreme breathlessness from 38% to 30% of patients, cognitive dysfunction from 48% to 38% of patients and poor health-related quality of life from 57% to 45% of patients).

Professor Banerjee added, "Several studies confirm persistence of symptoms in individuals with long COVID up to one year. We now add that three in five people with long COVID have impairment in at least one organ, and one in four have impairment in two or more organs, in some cases without symptoms."

He said, "Impact on quality of life and time off work, particularly in healthcare workers, is a major concern for individuals, health systems and economies. Many healthcare workers in our study had no prior illness, but of 172 such participants, 19 were still symptomatic at follow-up and off work at a median of 180 days."

The underlying mechanisms of long COVID remain elusive, say the researchers, who did not find evidence by symptoms, blood investigations or MRI to clearly define long COVID subtypes. They say that future research must consider associations between symptoms, multi-organ impairment and function in larger cohorts.

Prof Banerjee concluded, "Organ impairment in long COVID has implications for symptoms, quality of life and longer-term health, signaling the need for prevention and integrated care for long COVID patients."