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Jonathan A. Segal
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Pennsylvania Act 102 covers health care providers (broadly defined) in Pennsylvania.  It prohibits covered employers from mandating that covered employees work “overtime” except under certain limited circumstances.

Generally speaking, covered employees include employees directly involved in direct patient care and other clinical services.  Employees not covered by Act 102 include, but are not limited to,  physicians, physician assistants and patient care/clinical supervisors who are paid on a salaried (but not hourly) basis.

A common area of misunderstanding is what is meant by mandatory overtime under Act 102.  The definition of mandatory overtime under Act 102 is not based on the FLSA.  In other words, it does not mean work in excess of 40 hours in a work week. Instead, Act 102 defines mandatory overtime to mean work in excess of the employee’s “agreed to, predetermined, and regularly scheduled daily work shift.”

For example, assume a covered employee works three 10-hours shifts as agreed to upon hire.  Assume further that the covered employee’s replacement is late so his employer wants him to work additional time until his replacement arrives.

This additional time, in most circumstances, would constitute overtime under Act 102, even thought it would not result in the employee’s working overtime in the work week as defined by the FLSA.  The employee could agree to work the “overtime” voluntarily or the employer could mandate that the employee work the “overtime” involuntarily if one of the narrow exceptions to mandatory overtime were to apply (for example, unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer and which would significantly affect patient safety.)

The bottom line is that, even if a health care provider that does not mandate overtime as defined by the FLSA, the health care provider may be covered by Act 102 if it requires that a covered employee remain beyond her or his agreed to, predetermined and regularly scheduled shift.  This is all but inevitable in most health care institutions.

Health care providers who have only voluntary overtime in the FLSA sense need to take a second look at Act 102 and develop, if not a policy, then at least an internal protocol to comply with it.

Three (3) final notes:

  1. If employee works Act 102 overtime, that does not translate into duty to pay overtime under FLSA. Generally, an employee in Pennsylvania  is eligible for overtime under the FLSA only if he or she works in excess of 40 hours in a work week
  2. Rather than paying overtime after 40 hours in a work week, some employers follow the federal 8 and 80 overtime rules.  Whether this alternative manner of computing overtime is available in Pennsylvania  is unclear and one Philadelphia court has said it is not an option for Pennsylvania employers.  While the Philadelphia decision is binding only in Philadelphia, lawyers in other counties may rely upon the decision to challenge 8 and 80 overtime in such counties.
  3. Many states other than Pennsylvania, such as New Jersey, have rules that restrict mandatory overtime in health care. In most of these states, like Pennsylvania, overtime as defined  by the state law differs from overtime under the FLSA.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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The EEOC’s final regulations under GINA take a broad and expansive view of the general prohibition on seeking genetic information.  For instance, the regulations make clear that an employer may violate GINA without a specific intent to acquire genetic information.

However, there is an exception to the general prohibition on seeking genetic information that is applicable to lawful requests by employers for medical information sought in the context of requested leaves and accommodations.  But this exception applies only if the employer affirmatively informs both employees and their healthcare providers from whom such information is sought that the employer is not seeking genetic information in response to its request for medical information.

The EEOC’s final regulations include suggested “safe-harbor” language to accompany or include on any FMLA (or related) medical certification forms in which a lawful request for medical information is made.  The purpose of the safe-harbor language is to inform employees and health care providers that the employer is not seeking, and neither the employee nor the health care provider should provide, any genetic information.

By including this safe-harbor language in any such requests for medical information, the employer is not liable under GINA if the employer is then (inadvertently) provided with genetic information in response to its request.  Of course, the safe harbor language does not insolate the employer from liability if the employer subsequently uses improperly the genetic information that was inadvertently disclosed to it.

The suggested safe-harbor language contained in the EEOC regulations is as follows:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers will want to review their LOA and accommodation processes to make sure this language is included in all requests for medical information.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

About Jonathan A. Segal
621
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .