With the imminent blizzard of 2016, employers are thinking about work coverage issues. This is of particular concern for those employers who function on a 24-hour basis, like healthcare entities. In order to ensure coverage during perilous travel conditions, some employees may agree to (or even be required to) stay overnight. Obviously, any hours actually spent working must be paid, but they are likely not working during all of that time onsite. In fact, some of that time may be sleep time. What are the rules on pay under those circumstances?
The Fair Labor Standards Act provides that if an employee works for more than 24 hours, up to 8 hours of sleep time may be deducted pursuant to an agreement between the employer and employee. The FLSA does not define what is such an “agreement.” However, various courts have done so, and these courts have found that if an employer publishes a policy that explains the sleep time deduction and if employees continue to work for the employer, this constitutes an agreement for the deduction. In at-will employment states, any employee who chooses not to agree to any company policy, including one like this, can certainly choose not to work for the company. Conversely, the company can choose to terminate any employee who chooses not to agree to any of its policies. That is what at-will employment entails. If the company does not have a published policy on this issue, it will not be able to deduct for the sleep time.
The FLSA regulations provide that employers may only deduct for sleep time if the employee is fully relieved of all work during that time and if adequate sleeping facilities are provided. If the employee’s sleep period is interrupted because of work, the interruption is counted as hours worked. If the interruptions are so frequent that the employee cannot get a reasonable night’s sleep, then that entire sleep period would be counted as hours worked. According to the Department of Labor, a reasonable night’s sleep means that the employee is able to get at least 5 hours of sleep during the scheduled sleep period. These five hours need not be continuous uninterrupted hours of sleep.
In addition, only the actual number of hours spent sleeping, up to a maximum of 8 hours, is deducted. If the sleep time is more than 8 hours, no more than 8 hours can be deducted. Obviously, this means that each incidence of sleep time would need to be assessed individually.
(Of course, make sure that your state’s law does not have any different specific sleep time provisions!)