LeadingAge NY, Other Groups Call for Exemption from Call-in Regulations

LeadingAge NY, the Adult Day Health Care Council (ADHCC), and the Hospice and Palliative Care Association of New York State (HPCANYS) have jointly asked the State to exempt long term care (LTC) providers from proposed employee “call-in” regulations. The groups plan to meet with officials from the Governor’s Office, the Department of Health (DOH), and possibly the Department of Labor (DOL) later this week.

DOL’s proposed regulations govern “call-in,” “just-in-time,” or “on-call” scheduling of workers. They would expand the circumstances under which employers must provide on-call pay. As previously reported in Intelligence, DOL conducted four public hearings this fall to gather input on the subject.

Under current regulations, employers must pay employees for at least four hours of call-in pay if they report to work by request or permission of the employer. The proposed regulations would further expand on-call pay to apply when an employee:

1. Reports to work for any shift that hasn’t been scheduled at least 14 days in advance (an additional two hours of call-in pay is required);
2. Has his/her shift cancelled within 72 hours of the start of the shift (the employee must be paid for at least four hours of call-in pay);
3. Is required to be on-call to report to work for a shift (he/she must be paid for at least four hours of call-in pay); and
4. Is required to contact the employer within 72 hours of the start of the shift to confirm whether to report to work (he/she must be paid for at least four hours of call-in pay. Unless the employee reports and works, these additional call-in hours would be paid at the minimum wage rate.)

The proposed regulation would provide exceptions for: (1) employees covered by collective bargaining agreements that expressly provide for call-in pay; (2) workers who “volunteer to cover” another worker’s shift; (3) certain cancellation of shifts due to emergencies (e.g., weather, etc.); (4) employees during work weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage rate (except when the employee works the added time); and (5) new employees offered new shifts without a premium during the first two weeks of their employment.

Our letter urges the State to exempt LTC employers from these regulations, since they fail to address the day-to-day employee scheduling realities that LTC providers face due to the ever-changing needs and health/safety of their patients and residents. The regulations were published in the State Register on Nov. 22, 2017, with the public comment period ending on Jan. 8, 2018. LeadingAge NY also intends to submit formal comments at that time, and encourages its members to let us know if they have specific questions or concerns about the proposed regulations, and to consider submitting written comments as well.

We will keep members posted on the status of this proposal.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866