Health Care
Per-diem, as-needed and agency-like staff work irregular schedules by design. Hours of service include paid time off, so paid leave counts toward the 30-hour line.
The three things to know.
Irregular by Design
Per-diem and as-needed schedules make monthly status unstable. A measurement period gives each person a fairer average.
Paid Time Off Counts
Hours for which the employee is paid or entitled to payment while not working are hours of service, which can lift averages.
Multiple Entities
Health systems often have several related entities. Commonly owned entities are generally treated as one employer for the mandate.
Sources: 26 CFR § 54.4980H-1. General information, not legal advice.
A worked example.
A Per-Diem Nurse
A hospital employs a per-diem nurse who picks up shifts as needed, averaging 22 hours a week over 12 months but 36 hours in several months with high demand.
What the Rule Produces
Under a 12-month look-back design she averages under 30 and is not full-time for the stability period. Under monthly measurement, each of her 36-hour months would require an offer.
Four steps to apply it.
1. Identify the pool
List per-diem and as-needed staff.
2. Measure over a year
Use a long window to smooth demand spikes.
3. Include paid leave
Add paid time off to hours.
4. Review annually
Re-measure at each cycle.
Where it goes wrong. Treating per-diem staff as agency employees without checking who the common-law employer is.
The questions that come up next.
Are agency nurses our employees?
It depends on common-law control and the arrangement. Where an agency employs the nurse, the agency is typically the employer, but facts decide.
Do on-call hours count?
Hours for which the employee is paid or entitled to payment count. The rules for on-call time depend on the pay arrangement.
How should we measure residents and trainees?
They are judged like other employees on hours of service. Confirm any special rules with counsel.
Do on-call hours count?
They count if the employee is paid or entitled to payment for them.
What about staff at multiple facilities?
Commonly owned entities are generally one employer for the mandate.
Plan-specific questions belong with ERISA counsel, and we will bring them in.
Related pages on the look-back method.
Education
Educational organizations get a 26-week rule for treating a returning employee as new, and an averaging rule for employment break periods, so summer breaks do not erase a school year.
Staffing and Temporary Work
The regulation includes specific examples for temporary placements.
The Full Look-Back Guide
Every rule, example and source behind this page, in one place.
Talk it through with someone who runs this every year.
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